Murphy v. Cole

• Decision Date: 18 December 1935
• Docket Number: 32590
• Citation: 88 S.W.2d 1023,338 Mo. 13
• Parties: Eunice M. Murphy, Appellant, v. J. E. Cole
• Court: Missouri Supreme Court

88 S.W.2d 1023

338 Mo. 13

Eunice M. Murphy, Appellant, v. J. E. Cole

No. 32590

Supreme Court of Missouri

December 18, 1935

Appeal from Cole Circuit Court; Hon. Nike G. Sevier, Judge.

Reversed and remanded.

Walter Burch for appellant.

(1) In a civil suit, each party is entitled to exercise the right of peremptory challenge against three men out of a panel of eighteen competent and qualified jurors, and a denial of that right is reversible error. Carroll v. United Rys Co., 157 Mo.App. 264, 137 S.W. 303; Theobald v Transit Co., 191 Mo. 419. (2) Although appellate courts show great deference to the judgment of the trial court in the exercise of its discretionary powers, nevertheless orders denying a new trial are reviewed more strictly against the trial court than orders granting them, and will be set aside on appeal where it plainly appears that the trial court has abused its discretion by an unsound or arbitrary exercise thereof. Miles v. Haney, 190 Mo.App. 224; Parker v. Britton, 133 Mo.App. 270, 113 S.W. 259; Hopkins v. Springfield, 164 Mo.App. 686, 147 S.W. 1099; Allen v. Railroad Co., 167 Mo.App. 506, 151 S.W. 762; Settles v. McGinley, 222 Mo.App. 250, 296 S.W. 848. (3) The right to challenge a juror for cause is an essential incident of a fair and impartial trial, and may be exercised without limit as to number. The court has no discretionary power to permit an incompetent or disqualified person to serve as juror, if properly challenged. Doubts as to qualification should be construed against the juror, and the ruling of the court thereon is a question of law, reviewable upon appeal. 35 C. J., p. 404, sec. 458, p. 382, sec. 426; Theobald v. Transit Co., 191 Mo. 418; Coppersmith v. Railroad Co., 51 Mo.App. 357; Carroll v. United Rys. Co., 157 Mo.App. 264. (4) Pecuniary interest in the litigation is ground for challenge for cause, and it makes no difference whether such interest is real or imaginary. 35 C. J., p. 313, sec. 324D; Vessels v. K. C. Light Co., 219 S.W. 80. (5) One who is in the employ of a party to litigation is incompetent to serve as juror therein; and such disqualification extends to employees of parties not of record, but having a pecuniary interest in the suit; it includes employees of insurance companies interested in the litigation, and in Missouri has been held to disqualify an ex-employee. 35 C. J., p. 313, sec. 324, p. 322, sec. 338, p. 394, sec. 439; Johnson v. K. C. Elec. Light Co., 232 S.W. 1094; Quirk v. Met. St. Ry. Co., 200 Mo.App. 585; Richey v. Railroad Co., 7 Mo.App. 581; Oakley v. Richards, 275 Mo. 266, 204 S.W. 505; Wagner v. Gilsonite Constr. Co., 220 S.W. 890; Kinney v. Met. St. Ry. Co., 261 Mo. 97, 169 S.W. 23; Muehlebach v. Muehlebach Brewing Co., 242 S.W. 174; Wallnitz v. Werner, 241 S.W. 668; Laurent v. Hoxmeier, 227 S.W. 135; Meyer v. Gundlach-Nelson Mfg. Co., 67 Mo.App. 392. (6) Inquiry concerning the relationship of prospective jurors to insurance companies is proper, not only for the purpose of laying the foundation for exercising peremptory challenges, but also to lay the foundation for challenges for cause where relationship is established to a company interested in the litigation. Meyer v. Gundlach-Nelson Mfg. Co., 67 Mo.App. 392. (7) Statutory enumeration of grounds for challenge does not preclude a challenge for cause upon other grounds. State v. Miller, 156 Mo. 76; State v. West, 69 Mo. 401; Coppersmith v. Railroad Co., 51 Mo.App. 357. (8) The duty of the court to set aside a verdict that is grossly inadequate, or substantially less than the proved damages, is the same as its duty to set aside an excessive verdict. 46 C. J., p. 182, sec. 137; Craton v. Huntzinger, 187 S.W. 53; McCarthy v. St. Louis, 192 Mo. 403; Fischer v. St. Louis, 189 Mo. 579; Chouquette v. Railroad Co., 152 Mo. 266; Lee v. Publisher, etc., 137 Mo. 393; Busse v. White, 302 Mo. 672, 259 S.W. 458; Platt v. Cape G. Bell Tel. Co., 12 S.W.2d 933; Roman v. Boston Trading Co., 87 Mo.App. 186; Laclede Power Co. v. Nash Tea Co., 95 Mo.App. 412. (9) Under the statute and adjudicated cases it was the plain duty of the court to set aside the verdict, because of false testimony offered by witnesses for defendant, relative to the alleged widening of the dirt shoulder along the edge of the pavement, at the scene of the collision, which tended to excuse defendant's driver from blame, and biased the jury in defendant's favor. R. S. 1929, sec. 1002; Scott v. Ry. Co., 168 Mo.App. 530; Ridge v. Johnson, 129 Mo.App. 546; Rickroad v. Martin, 43 Mo.App. 604; Dean v. Johnson, 229 Mo. 452. (10) The testimony of a skilled witness, or expert, must be based on special knowledge, derived from education, observation or experience, and the facts upon which the opinion is based must be first stated. Such facts must be consistent with known scientific truths, and must be detailed in the evidence as the foundation of the qualifications of the witness. Measured by this rule, the testimony or opinion of witness Copeland that the Murphy car was traveling fifty to fifty-five miles per hour, founded upon his alleged knowledge of the hums of motors, was incompetent. Campbell v. Railroad Co., 175 Mo. 161; McAnany v. Henrici, 238 Mo. 103; Witte Iron Works v. Holmes, 62 Mo.App. 372; Benjamin v. Met. St. Ry. Co., 50 Mo.App. 602; Farmer v. Railroad Co., 178 Mo.App. 579. (11) The measure of damages in cases of this character is full compensation for the pecuniary loss suffered by plaintiff as the result of the death of her husband, including loss of support for herself and minor children, and such other liabilities for the care and maintenance of herself and minor children as were cast upon her by his death. Under this rule it was competent for plaintiff to prove the reasonable and necessary cost of medical and surgical treatment of one of her minor children for a condition existing at the time of her husband's death. The statute authorizes the recovery of any damages which may be estimated according to a pecuniary standard, whether present, prospective or proximate. Hickman v. Union E. L. & P. Co., 226 S.W. 575; Morton v. Lloyd Const. Co., 280 Mo. 360; Barth v. Ry. Co., 142 Mo. 535; Seeder v. Railroad Co., 100 Mo. 673.

Anderson, Gilbert & Wolfort, Ragland, Otto & Potter and June R. Rose for respondent.

(1) The trial court committed no error in refusing to sustain plaintiff's challenge for cause to juryman W. H Steininger because the fact that he was an agent for the St. Paul Mercury Indemnity Company does not constitute a challenge for cause, but such inquiry is permitted under the law to enable a plaintiff in such case to elicit information to enable him to determine upon his peremptory challenges. Such connection does not constitute a challenge for cause. Rytersky v. O'Brine, 70 S.W.2d 540; Maurizi v. Western Coal & Mining Co., 11 S.W.2d 274; Olian v. Olian, 59 S.W.2d 674; Ulmer v. Farnham, 28 S.W.2d 115; Wendel v. City Ice Co. of K. C., 22 S.W.2d 217; Raines v. Wilson, 239 N.W. 37; Mortrude v. Martin, 172 N.W. 22. (a) And the record fails to show that the insurance company was any longer interested in the case. (2) The appellant is in no position to be heard to complain that the jury awarded a less sum by way of damages than the amount to which appellant considers herself entitled, for the reason that the court gave, at the instance of appellant, an instruction instructing the jury that it should allow as damages such sum as to the jury seemed fair and just with reference to the pecuniary injury or loss, if any, resulting from the death of appellant's husband, also having regard to any mitigating or aggravating circumstances attending the act which caused his death, etc. (a) Appellant should not be heard to complain that the jury followed the instruction requested by the appellant and given by the court on the measure of damages. Meffert v. Lawson, 315 Mo. 1099; Schofield v. Harrison Land & Mining Co., 187 S.W. 63; Kinlen v. Railroad Co., 216 Mo. 166; Lange v. Railroad Co., 208 Mo. 475; Mirrieless v. Ry. Co., 163 Mo. 486; Christian v. Ins. Co., 143 Mo. 468; Olfermann v. Ry. Co., 125 Mo. 415; Baker v. Ry. Co., 122 Mo. 599; Herndon v. Robertson Construction Co., 227 Mo.App. 698; Potter v. Metropolitan Street Ry. Co., 142 Mo.App. 226; Guntley v. Staed, 77 Mo.App. 163. (b) Appellant having requested and the court having given an instruction that mitigating circumstances should be considered by the jury, the finding of the jury, which was sustained by the trial court, will not be disturbed on appeal. McCarty v. St. Louis Transit Co., 192 Mo. 401. (3) The ruling of the trial court on appellant's motion for a new trial on the alleged inadequacy of the verdict should not be set aside by the appellate court because: (a) The ruling of a trial court on the subject of the adequacy of a verdict is a ruling on the weight of the evidence. St. Louis v. Franklin, 324 Mo. 1214; Sofian v. Douglas, 324 Mo. 264; Hunt v. Gillerman Iron & Metal Co., 327 Mo. 889; Bowers v. Pub. Serv. Co., 328 Mo. 778; Stegner v. Railroad Co., 333 Mo. 1194. (b) Trial courts may pass upon the weight of the evidence. Appellate courts may not pass upon the weight of the evidence and will sustain the ruling of the trial court if there is any substantial evidence or good reason upon which the trial court could have based its ruling. St. Louis v. Franklin, 324 Mo. 1214; Bowers v. Pub. Serv. Co., 328 Mo. 778; Sofian v. Douglas, 324 Mo. 264; Cochran v. Wilson, 287 Mo. 230. (c) The trial court correctly ruled on the motion for a new trial on this point and its ruling should be sustained because: On the whole record the case preponderates in favor of the defendant and where the evidence preponderates in favor of a defendant or is evenly balanced the appellate court will not interfere with the trial court's...