National Bank of Rolla v. Romine

• Decision Date: 03 April 1911
• Parties: NATIONAL BANK OF ROLLA, Appellant, v. W. T. ROMINE et al., Respondents
• Court: Missouri Court of Appeals

136 S.W. 21

154 Mo.App. 624

NATIONAL BANK OF ROLLA, Appellant, v. W. T. ROMINE et al., Respondents

Court of Appeals of Missouri, Springfield

April 3, 1911

Appeal from Phelps Circuit Court.--Hon. L. B. Woodside, Judge.

Judgment affirmed.

Harry Clymer and Frank H. Farris for appellant.

(1) The trial court erred in excluding the question asked the jurors on voir dire examination touching their qualifications to serve in the cause. Plaintiff was entitled to a trial before a jury free from bias or prejudice, and in order to determine whether the prospective jurors possessed such qualifications had the right to ask such questions, the answer to which might tend to elicit such information. State v Mann, 83 Mo. 599; State v. King, 174 Mo. 658; Theobald v. Transit Co., 191 Mo. 415; Saller v Shoe Co., 130 Mo.App. 720; Heidbrink v. United Railways, 133 Mo.App. 43; Billmeyer v. Transit Co., 108 Mo.App. 10. (2) The court erred in admitting testimony on the question of failure of consideration, and in submitting that question to the jury for the reason no such issue was raised by the answer. Northrup v. Ins Co., 47 Mo. 444; Williams v. Mellon, 56 Mo. 262; Hudson v. Railroad, 101 Mo. 30; Kelerher & Little v. Henderson, 203 Mo. 511; Cushing v. Powell, 130 Mo.App. 578. (3) The trial court erred in refusing instruction No. 1-a requested by the plaintiff at the close of the whole case. Wilson v. Reddler, 92 Mo.App. 335; Bank v. Hammond, 104 Mo.App. 403; Bank v. Bank, 109 Mo.App. 665; Bank v. Leeper, 121 Mo.App. 688; Reeves v. Letts, 143 Mo.App. 199. (4) Defendant's instruction number 3 submitted to the jury the question of failure of consideration, which was an issue not raised by the answer. It is well settled in this state that it is reversible error to submit to the jury an issue not raised by the pleadings. Nugent v. Curran, 77 Mo. 328; Melvin v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572; Aultman & Taylor Co. v. Smith, 52 Mo.App. 352; Glaves v. Morrow, 69 Mo.App. 389; Caffery v. Coal and Mining Co., 95 Mo.App. 180.

Watson & Holmes for respondent.

(1) The court did not err in giving instruction No. 3 on the part of the respondent. Even though it was error to give this instruction, yet this identical proposition was submitted to the jury by the appellant in instruction No. 1, and it ought not now to be heard to complain of an alleged error that it committed because such alleged error was committed by the respondent. It will also be observed that the appellant offered to submit the same question in its instruction No. 1-a, which was refused by the court. Crum v. Crum, 132 S.W. 1073. (2) The court did not err in refusing appellant's instruction No. 1-a. There is abundant evidence in this record tending to show that appellant's cashier had actual knowledge at the time he purchased the note in question that the same was without consideration and had been obtained by fraud from the makers. Bank v. Romine, 136 Mo.App. 57.

OPINION

COX, J.

This is the second appeal in this case. The first is found in 136 Mo. App., page 57, 117 S.W. 104. In the first trial the verdict of the jury was in defendant's favor, and upon plaintiff's appeal the judgment was reversed and the cause remanded for new trial on account of error in the instructions. The case was retried upon the same evidence and defendants were again successful and plaintiff has again appealed.

This action is based upon a promissory note payable to one C. A. Post, and made payable at the National Bank of Rolla of Rolla, Missouri, and plaintiff sues as endorsee. The answer set up fraud and want of consideration and purchase by plaintiff with notice.

The first error complained of by plaintiff relates to the action of the court in sustaining objection to a question asked by plaintiff of the jurors upon their voir dire examination. After the jurors had been interrogated generally and had answered satisfactorily counsel for plaintiff asked the following question:

"Q. As it has been stated before, by counsel, and by the court, this suit is upon a note claimed to have been executed by Mr. Romine to a man by the name of Post, as a consideration of purchase of a kitchen cabinet, or a patent right, now if it should develop that Mr. Romine actually received no valuable consideration for this note, would that fact preclude you from giving a verdict in favor of the Bank, if the court would instruct you that, under the law, the Bank would be entitled to a verdict if it purchased the note, before maturity, for a valuable consideration, and without the knowledge of this fraud being perpetrated by Post upon Romine?"

Upon objection being made to this question the court then asked the following question:

"Q. Gentlemen, have you got any prejudice, in any way, against either of these parties, plaintiff or defendant?"

To which question the entire panel of jurors answered in the negative.

"Q. Can you and will you go into the jury box and try the cause fairly on the testimony and the law, as declared by the court, what do you all say?"

To which question the entire panel of jurors answered "Yes".

The court then sustained the objection to plaintiff's question. Counsel for plaintiff now insists that this was error. It is conceded that the jurors were shown by their examination to have been competent jurors, but it is contended that the question should have been answered for the information of plaintiff in making his peremptory challenges.

We think great liberality should be allowed counsel in the voir dire examination of jurors to the end that all information necessary to enable them to exercise their peremptory right of challenge intelligently may be secured; yet we are not prepared to say that error was committed in that respect in this case. It does not appear that anything new would, or could have been elicited had the question been answered. In answering questions asked by the court each juror stated that he was free from prejudice and would try the case fairly upon the evidence and the law as declared by the court. This was equivalent to saying that they would weigh the evidence fairly and then obey the instructions of the court in applying the law thereto, and this was all that the question asked by counsel for plaintiff sought to elicit. The answers given by the jurors to the questions asked by the court show that if they had been permitted to answer the question asked by counsel for plaintiff the answer would have been satisfactory, and hence, he has no cause for complaint.

It is next contended that error was committed by the court in admitting testimony tending to show a failure of consideration and in instructing the jury on that question because a failure of consideration was not pleaded in the answer as a defense. The general proposition that a party cannot recover or defend upon a cause of action not pleaded is too well established to...