Moss v. May Department Stores Co.

• Citation: 31 S.W.2d 566
• Decision Date: 07 October 1930
• Docket Number: No. 21195.,21195.
• Parties: MOSS v. MAY DEPARTMENT STORES CO.
• Court: Court of Appeal of Missouri (US)

31 S.W.2d 566

MOSS v. MAY DEPARTMENT STORES CO.

No. 21195.

St. Louis Court of Appeals. Missouri.

October 7, 1930.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Grace Moss against the May Department Stores Company. Verdict was returned in favor of defendant, and, from an order granting plaintiff a new trial, defendant appeals.

Affirmed, and cause remanded.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

HAID, P. J.

This appeal is from an order granting plaintiff a new trial upon a verdict returned in favor of the defendant.

The plaintiff was an employee of the defendant, and alleged that, as she was endeavoring to enter the store of defendant through swinging doors, one of the defendant's employees in another department negligently pushed and propelled a truck into the path of the swinging doors at a time when said doors were being constantly opened by the employees of the defendant reporting for work, and that such employee negligently failed to swerve said truck when, by the exercise of ordinary care, he could have done so and have avoided striking the door and thereby injuring the plaintiff; that, as a direct and proximate result of such negligence, plaintiff's right hand and fingers were cut, bruised, inflamed, and swollen, and the little finger of plaintiff's right hand was bent against the back of her hand and at the time of filing the suit was downwards toward the palm of the hand, and that the tendency and condition to draw downward is a progressive one. There were other allegations in the petition, but the foregoing is sufficient to indicate the act of negligence alleged and the injury claimed to have been suffered. The answer was a general denial.

The plaintiff's motion for a new trial was sustained by the court upon the fourth and seventh grounds thereof, the fourth ground being that the verdict was the result of prejudice on the part of the jury, and the seventh that the court erred in admitting certain incompetent, irrelevant, and immaterial evidence offered by the defendant and prejudicial to the plaintiff.

The reasons assigned by plaintiff in support of the fourth ground of her motion were that two members of the jury carried accounts with defendant, that one juror was formerly an employee of defendant, that one juror had defendant for a customer in his business, and that one juror was acquainted with and friendly toward counsel for defendant, that several jurors indicated a prejudice against the bringing of a suit of an old claim, and that one of the jurors admitted such prejudice but stated he would not be affected by it if the amount involved was not in excess of $2,000.

The defendant's first contention is that, because the reasons assigned in support of plaintiff's fourth ground for a new trial concerning the qualifications of the jurors are not preserved in the bill of exceptions, they were not proper for consideration by the trial court in passing upon the motion for a new trial. It will be observed, however, that in its order sustaining the fourth ground of the motion for a new trial, the court does not base its action upon the reasons set out in support of the ground, and it may be that in the mind of the trial judge there were other reasons which induced him to take the action he did.

In support of its contention the defendant relies upon the cases of State v. Marshall, 36 Mo. 400; State v. Jones, 61 Mo. 232; State v. Ward, 74 Mo. loc. cit. 256 and State v. Collins, 86 Mo. 245. An examination of these cases discloses that they were appeals or writs of error from convictions in criminal cases, and, therefore, a review was confined strictly to the matters occurring at the trial and preserved in the bill of exceptions. The court, therefore, held that in a criminal case, as in a civil case, it could only review such errors as appeared upon the face of the record or such as might be taken advantage of by a motion in arrest or by writ of error, but as to exceptions taken in the progress of the trial and as to motions for a new trial and in arrest, which became part of the record only by bill of exceptions, it could consider only those matters preserved in the bill of exceptions. The result is that, if the plaintiff had been compelled to take an appeal, she would have been precluded from a review concerning the voir dire examination of the jurors in the absence of those proceedings in the bill of exceptions.

But this is an appeal by the defendant, and the bill of exceptions does not contain the voir dire examination of the jurors...