Middleton v. Kansas City Public Service Co.

• Citation: 152 S.W.2d 154,348 Mo. 107
• Decision Date: 18 April 1941
• Docket Number: 37213
• Parties: Mae Middleton v. Kansas City Public Service Company, Appellant
• Court: United States State Supreme Court of Missouri

152 S.W.2d 154

348 Mo. 107

Mae Middleton v. Kansas City Public Service Company, Appellant

No. 37213

Supreme Court of Missouri

April 18, 1941

Rehearing Denied June 12, 1941.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed and remanded.

Charles L. Carr, Watson, Ess, Groner, Barnett & Whittaker, William A Kitchen and Herbert C. Hoffman for appellant.

(1) The misconduct of the jury, during the progress of the trial, especially the misconduct of juror Alva C. Tudor, without the knowledge or consent of the court, the parties or their counsel, in visiting the places of business of various automobile dealers in search of a 1930 Chevrolet automobile and making measurements of such an automobile and of other Chevrolet automobiles, not referred to in the evidence adduced in court, and in making measurements of a number of street cars not referred to in the evidence adduced in court, and in informing the jury of the results of such independent investigation and considering such evidence in the jury room, and the trial court's refusal to grant a new trial because of such misconduct, constituted error to the prejudice of the defendant. 3 Wigmore on Evidence (2 Ed.), 829, par. 1800; Pratte v. Coffman, 33 Mo. 71; Ullom v. Griffith, 263 S.W. 876; Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036; State v. Malone, 333 Mo. 594, 62 S.W.2d 909; State ex rel. v. Patton, 229 Mo.App. 331, 77 S.W.2d 857; Dysart-Cook Mule Co. v. Reed & Heckenlively, 114 Mo.App. 296, 89 S.W. 591; Bank of Malden v. Stokes, 280 S.W. 1057; Downs v. Fossey, 144 Kan. 456, 61 P.2d 875; Headington v. Central Building Co., 141 Kan. 338, 41 P.2d 1040; Schneider v. Moe, 50 P.2d 577; Kelley v. Adams County, 113 Neb. 377, 203 N.W. 544; Aldrich v. Wetmore, 52 Minn. 164, 53 N.W. 1072; Pierce v. Brennan, 83 Minn. 422, 86 N.W. 45; Bowler v. Inhabitants of Washington, 62 Me. 302; Driscoll v. Gatcomb, 112 Me. 289, 92 A. 39; Tunmore v. MacLeish, 45 Cal.App. 266, 187 P. 443; Ewers' Admr. v. Natl. Impr. Co., 63 F. 562; Pool v. Railroad, 6 F. 844; Consolidated Ice Machine Co. v. Trenton Hygeian Ice Co., 57 F. 898; People v. Conkling, 111 Cal. 616, 44 P. 314; Douston v. State, 6 Humph. 275; Allison v. Dittbrenner, 50 S.W.2d 199. (2) The affidavit of juror Tudor as to his misconduct, coupled with other and additional evidence thereof, derived from other sources, was competent evidence to impeach the verdict rendered in this case. Pratte v. Coffman, 33 Mo. 71; State v. Malone, 333 Mo. 594, 62 S.W.2d 909; Clark v. United States, 289 U.S. 1, 77 L.Ed. 993; Natl. Labor Relations Board v. Botany Worsted Mills, 106 F.2d 264. (3) The oath administered to a trial jury definitely informs them they must render their verdict solely on the evidence adduced at the trial. Evans v. Klusmeyer, 301 Mo. 352. (4) Affidavits of jurors that they were not affected by misconduct of one of their number and that their verdict was rendered wholly on the evidence given in court are incompetent and are of little or no weight and of no probative force. State v. Malone, 333 Mo. 594, 62 S.W.2d 909; Ullom v. Griffith, 263 S.W. 876; Pool v. Railroad, 6 F. 844; Aldrich v. Wetmore, 52 Minn. 164, 53 N.W. 1072; Driscoll v. Gatcomb, 112 Me. 289, 92 A. 39. (5) The court specifically found that there was misconduct on the part of a juror (Tudor) and having made such a finding of fact, the denial of a new trial constituted an erroneous ruling on a question of law, the correctness of which will be determined on appeal independently of the judgment of the trial court. 46 C. J. 833, sec. 2814; Wilt v. Coughlin, 176 Mo.App. 275, 161 S.W. 888. (6) Even if it could be said that the ruling of the court denying a new trial was a matter of discretion, the refusal to grant a new trial in this case constituted an abuse of discretion. 46 C. J. 410, sec. 468; Loftus v. Met. St. Ry. Co., 220 Mo. 470, 119 S.W. 942; Ullom v. Griffith, 263 S.W. 876; Schneider v. Moe, 50 P.2d 577. (7) The court having made a finding of fact that there was misconduct on the part of a juror, the matter of granting or refusing a new trial presented a law question. There can be no discretion as to the law of a case. It is only when the court's ruling is directed to the facts that the exercise of discretion is permissible. Under the record of this case, defendant is entitled to a new trial as a matter of law. Loftus v. Met. St. Ry. Co., 220 Mo. 470, 119 S.W. 942; City of Kennett v. Constr. Co., 273 Mo. 279, 202 S.W. 558; Yuronis v. Wells, 322 Mo. 1047, 17 S.W.2d 518.

Schwimmer, Keating, Bredehoft & Burris and Walter A. Raymond for respondent.

(1) The court properly overruled appellant's claim of misconduct of juror Tudor. (a) There was no competent evidence to impeach the verdict rendered in the case. Steffen v. Southwestern Bell Tel. Co., 331 Mo. 574, 56 S.W.2d 47; Woehler v. St. Louis, 342 Mo. 237, 114 S.W.2d 985; State v. Malone, 333 Mo. 594, 62 S.W.2d 909; Bank of Malden v. Stokes, 220 Mo.App. 131, 280 S.W. 1055; Easley v. Mo. Pac. Ry., 113 Mo. 236, 20 S.W. 1073; Jordan v. St. Joseph Ry., Lt., H. & P. Co., 335 Mo. 319, 73 S.W.2d 205; Sennert v. McKay, 56 S.W.2d 105; Thompson v. Lamar, 322 Mo. 514, 17 S.W.2d 960; State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75; State v. Malone, 333 Mo. 594, 62 S.W.2d 909; Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036; State v. Williams, 335 Mo. 234, 71 S.W.2d 732. (2) A mere technical violation of his oath by a juror in the absence of prejudice to the party complaining, is no ground for reversal. Winters v. Hassenbusch, 89 S.W.2d 546. (3) The affidavits of the jurors in support of the verdict are competent evidence of great probative force and weight. Thompson v. Quincy, O. & K. C. Ry. Co., 18 S.W.2d 401; Finer v. Nichols, 175 Mo.App. 525, 157 S.W. 1023; Troxel v. De Shon, 279 S.W. 438; Hill v. Jackson, 220 Mo.App. 1302, 290 S.W. 1012. (4) The disposition of the charge of misconduct of juror Tudor was a matter addressed to the discretion of the trial court. Unless there was an abuse of that discretion, this court is not warranted in interfering. St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003; Young v. Pennsylvania Fire Ins. Co., 269 Mo. 1, 187 S.W. 856; Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036; Consolidated School Dist. v. West Mo. Power Co., 329 Mo. 690, 46 S.W.2d 174; Steffen v. Southwestern Bell Tel. Co., 331 Mo. 574, 56 S.W.2d 47; Turnbow v. Kansas City Rys. Co., 277 Mo. 644, 211 S.W. 41; Wilkerson v. Sedalia, 199 Mo.App. 583, 205 S.W. 877. (5) The refusal to grant a new trial because of alleged misconduct of a juror did not constitute an abuse of discretion. (6) The determination of this question is a matter of fact and not of law, the court's finding of no prejudice from a mere technical violation was a finding of fact which is conclusive, in the absence of an abuse of discretion.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action for damages for personal injuries. Plaintiff was a passenger on one of defendant's street cars and was injured when a collision occurred between the street car and an automobile. The jury returned a verdict for plaintiff for $ 10,000, upon which judgment was entered, and defendant appealed.

Plaintiff was riding on an eastbound street car on Eighth street in Kansas City. She was seated near the rear of the street car, on the north side, facing south. The collision occurred at the intersection of Eighth and Oak streets. Plaintiff was thrown upward and off the seat to the floor. She first hit an iron rail on the edge of the seat and then struck the floor. She received severe and permanent injuries.

The petition charged general negligence under the res ipsa loquitur doctrine. Plaintiff's evidence tended to show that at the time of the collision a man was standing at the right front door talking to the operator of the street car; that the street car was traveling 20 to 25 (and 25-35) miles per hour; that it did not stop or slow down on entering Oak street, or before the collision; that there was no warning bell or gong sounded as the street car entered the intersection or before the collision; that the brakes were not applied before the collision; that the automobile, a 1930 Chevrolet sedan, was traveling north on Oak street at 5 to 7 miles per hour; that the collision occurred near the center of the intersection and a little to the east; that the automobile driver had stopped for the crossing at a stop sign on the south side of Eighth street and had then started slowly across; that he did not see the street car until it was about 10 feet away; that he turned sharply to the left in an effort to avoid the collision and put on his brakes; that the right front end of the street car hit the left front wheel of the automobile and swung it around so that the left rear of the automobile hit the right side of the street car and broke a window glass in the street car; and that the front end of the automobile was knocked over the curb onto the sidewalk on the south side of Eighth street east of Oak street.

Defendant's evidence tended to show that the street car slowed down and came to a momentary stop at Oak street; that the operator tapped the gong twice as a warning to passengers as he put on the power to move the car forward; that he was not talking to anyone; that there was a stop sign for north and south traffic on Oak street, which street carried Highway No. 71 traffic; that there was no stop sign for east and west traffic on Eighth street; that the street car traveled slowly across the intersection which was clear of automobile traffic; that it had attained the speed of 15 miles an hour when the collision occurred; that the 43 foot street car had cleared the intersection, except for 9 to 15 feet, when the collision occurred; that the operator...