Reich v. Thompson

• Decision Date: 23 July 1940
• Docket Number: 36595
• Parties: Robert Reich, an Infant by Anna Reich, His Mother and Natural Guardian, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 486

346 Mo. 577

Robert Reich, an Infant by Anna Reich, His Mother and Natural Guardian, v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 36595

Supreme Court of Missouri

July 23, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Affirmed.

Thomas J. Cole for appellant.

(1) The court erred in sustaining the motion for new trial, because (a) There was no allegation or no testimony that respondent did not know of the existence of the suits against juror Georgopoulos and his father at the time of the voir dire. Naylor v. Smith, 46 S.W.2d 603; Clack v. K. C. Electrical Wire Subway Co., 138 Mo.App. 205 119 S.W. 1014; C., C., C. & St. L. Ry. Co. v. Dixon, 96 N.E. 816. (b) The motion for new trial was not verified and its allegations as to misconduct of a juror are for that reason fatally insufficient. Western Roofing Co. v. South Park Baptist Church, 137 Mo.App. 101. (2) Neither the court nor counsel had the right to make the searching inquiry of the juror as to what transpired in the jury room. (3) The court erred in allowing deputy clerk, Lohr, to testify as to what he heard while standing outside the jury room. The deliberations of the jury were supposedly secret. The jurors were entitled to privacy in their deliberations, and the protection of the court's officers.

Leo F. Laughren for respondent.

(1) The court did not commit error in sustaining the motion for new trial, because: (a) Where matters which might establish prejudice or work disqualification of juror are actually gone into on voir dire, and false answers are given, court may consider the question on a motion for a new trial, upon oral testimony. Lee v. Baltimore Hotel Co., 136 S.W.2d 695; Bass v. Durand, 136 S.W.2d 988; Massman v. Kansas City Pub. Serv. Co., 119 S.W.2d 838; Harding v. Fidelity & Cas. Co. of New York, 27 S.W.2d 779. (b) The statutes do not require the motion for a new trial to be supported by affidavit. Secs. 1002, 1003, R. S. 1929; Ridge v. Johnston, 129 Mo.App. 546. (c) The proceeding on the motion for a new trial is summary, and ex parte affidavits or other means of information may be used, at the discretion of the court. Sennert v. McKay, 56 S.W.2d 109. (d) It was not necessary that the motion for new trial be verified or accompanied by affidavits of counsel and client where the grounds for new trial is supported by competent proof. The rule of practice does not require that such allegations of a motion for new trial must be supported by affidavits, but that they "must be supported by proof." Sennert v. McKay, 56 S.W.2d 109; Branch v. Klatt, 173 Mich. 31. (e) It was not necessary that the motion for a new trial contain an allegation, or that the testimony on the hearing on the motion for a new trial show that respondent did not know of the existence of the suit against the juror Georgopoulos and his father at the time of the voir dire; it is sufficient if the allegation in the motion for a new trial show, and the proof support, the fact "that said bias and prejudice on the part of said juror was not known to this plaintiff or his counsel until after the rendition of the verdict." This allegation, by implication, shows sufficiently that neither respondent nor his counsel was aware of this fact. (f) If, from the evidence taken by the trial judge on the hearing of a motion for a new trial on the ground of misconduct of the jury, it is reasonably doubtful whether a juror was influenced, etc., the verdict must be set aside. Southern Traction Co. v. Wilson, 254 S.W. 1104. (2) Testimony of juror minimizing the effect of his misconduct is given but little weight in determining whether the verdict was affected thereby, and the most emphatic denial of the juror cannot conclusively establish that the misconduct had no effect upon the verdict. Waco v. Rose, 2 S.W.2d 563; Letsinger v. Ry. Co., 286 S.W. 1107; Dallas Railroad Co. v. Skarodynski, 292 S.W. 639; Moore v. Ivey, 277 S.W. 106.

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

OPINION

DALTON

This is an action for $ 25,000 damages for personal injuries sustained by plaintiff when he was struck by one of defendant's locomotives. The jury found for defendant and the trial court, on motion, granted plaintiff a new trial. Defendant has appealed from this order.

The record shows that a new trial was granted because of misconduct and improper and illegal behavior on the part of one of the jurors, Nicholas Georgopoulos, in that the juror was not a qualified juror, although he qualified on voir dire examination as such; that the juror was asked by counsel for the plaintiff if he, or any member of his family or intimate friends or relatives had ever been sued or was a party to a suit for damages as a result of bodily injuries sustained; that said juror answered, "No," when, in truth and in fact, the said juror had been sued by one Lasetta Thuneman on June 27, 1929, for $ 10,000 damages for injuries sustained by her when she was struck by an automobile owned and operated by said juror; that said suit was in the circuit court of the city of St. Louis, Missouri; that by reason thereof said juror was biased and prejudiced against the plaintiff and the plaintiff's cause of action and in favor of defendant, as said juror well knew; that said juror could not and did not give the plaintiff a fair and impartial hearing and trial; that he asserted his bias and prejudice and expressed the same to other jurors during their deliberations of the case; and that said bias and prejudice on the part of the juror was not known to plaintiff and his counsel until after the rendition of the verdict. The court's order followed the allegations of assignment No. 17 of the motion for a new trial.

The motion for a new trial was not verified, and no affidavits were filed with or in support of it, but the court heard evidence in support of the allegations of the motion. No record had been made of the questions and answers on the voir dire examination of the jurors, but one of plaintiff's attorneys, who conducted the examination of prospective jurors, testified that on the jury list was the name of Nicholas Georgopoulos; that this juror gave his residence and business, and said he was married and had a child five years old; that he was then asked if he or any member of his family or any of his close friends or associates had ever been sued in a case of this kind, that is, one for damages for injury inflicted to a person's body; that the juror answered, "No;" that he was then asked if he had ever had any experience in his life that would cause him to have a prejudice in a lawsuit of this kind and that the juror answered, "No." The witness (plaintiff's attorney) refreshed his recollection by reference to a jury list, and notes made by him at the trial of the case. He further stated that in examining the jurors he asked about suits where persons were "struck or injured by a street car, automobile, falling down or any other way."

A deputy clerk of the circuit court testified that he saw Nicholas Georgopoulos present on the jury panel at the time of the voir dire examination; that the juror was reading a newspaper for several minutes during the voir dire examination; that he told the juror to put down the newspaper; that he talked to this juror when the juror went out and left his top coat on the rack and later came back and got it and put it in the clerk's locker; that from these conversations with the juror he recognized the juror's voice; that while the jury was out he (witness) went upstairs to a room used by witnesses, near the jury room; that as he went upstairs, and as he came downstairs, he heard a commotion in the jury room and heard voices coming from the jury room. Over appellant's objection he was permitted to state that when he got up to the landing the deputy sheriff was there (having gone there on account of the fact that there was a great commotion in the jury room) and that he (witness) heard someone in the jury room say in a loud voice, "Well, I talked this case over with my wife last night"; that later he heard this voice in the jury room say, "Well, how would you like that they put some iodine on your boy's foot and a shyster lawyer got ahold of him; he sued this man for $ 10,000 and got a judgment against him and the man had to sell out his business." The witness said that he recognized the voice as that of juror Georgopoulos.

In the hearing on the motion it was admitted by counsel for defendant that the records of the circuit court of the city of St. Louis showed that on or about June 27, 1929, the juror had been sued by one Lasetta Thuneman for $ 10,000 for personal injuries; that on January 16, 1935, a stipulation was filed and a judgment entered in said cause by consent in favor of the plaintiff and against the defendant for $ 100 and costs, with execution stayed for 60 days; that on May 17, 1927, one Bruno Spinelli had instituted a suit against Apostolos Georgopoulos, the father of the said juror, for $ 7500 and that said cause was later dismissed at plaintiff's cost.

There was evidence that after the jury went out to deliberate on the case that plaintiff's attorney was seated in the court room and that he heard a very loud noise and a commotion in the jury room; that the noise sounded as though someone was quarreling; that he heard the voice of one juror who was talking but could hear no one else; that the juror was speaking in a loud voice; that he saw the deputy sheriff leave the court room and heard him say, "It sounds like a fight to me." The attorney testified, however, that he had no information as to what went on in the jury room until after the verdict was rendered. The deputy sheriff was not produced...