Rinkenbaugh v. Chicago, R. I. & P. R. Co., 54019

• Decision Date: 10 November 1969
• Docket Number: No. 54019,No. 2,54019,2
• Citation: 446 S.W.2d 623
• Parties: Roger RINKENBAUGH, Respondent, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 623

446 S.W.2d 623

Roger RINKENBAUGH, Respondent, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a

Corporation, Appellant.

No. 54019.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1969.

Ernest Hubbell, William C. Lane, Daniel D. Sawyer, Walter A. Raymond, Kansas City, for respondent.

Thad C. McCanse, Neal E. Millert, David A. Welte, James, McCanse & Larison, Kansas City, for appellant.

PRITCHARD, Commissioner.

After a defendant's verdict on plaintiff's $184,732.00 claim for personal injuries brought under the Federal Safety Appliance Act, the trial court awarded plaintiff a new trial, 'because plaintiff was deprived of a fair trial by the misconduct of jury foreman Dale K. Burns in intentionally failing to disclose, in response to questions propounded by counsel for plaintiff, during the voir dire examination of the jury panel, that he had been sued on account of personal injuries suffered by another person, when in truth and in fact said Juror had been so sued.'

The issue is whether the trial court abused its discretion in awarding a new trial, or as defendant puts it in its reply brief: 'The only real issue in this case is whether or not there was any rational, logical basis for a finding of intentional concealment of a material fact upon which an inference of bias and prejudice on the part of Juror Burns could be based.'

On the voir dire examination, plaintiff's counsel asked the panel whether any member had ever been sued on account of personal injuries or death suffered by someone else. Mr. James A. Seibert answered that he believed he and his insurance company were being sued, that such fact would not prejudice him against plaintiff. No other member of the panel responded to the question.

Counsel for defendant, after inquiring of the panel whether any member knew the physician who would testify, whether any member worked for defendant or was familiar with boxcar braking systems, asked: 'Have any of you members of this panel ever filed a claim for personal injuries to yourself' I think Mr. Lane asked the reverse of the question. Yes, Mr. Burns. MR. DALE BURNS: About nine years ago I filed a claim due to an accident involving a city's manhole cover and my car. My nose and face was mashed up a little bit from that. MR. McCANSE: Your nose was mashed? MR. BURNS: Yes. It has since been settled. MR. McCANSE: The City settled it? MR. BURNS: Yes. MR. McCANSE: Did you have any other injuries besides your nose? MR. BURNS: Bruises and cuts around my face. MR. McCANSE: Is there anything in that experience--by the way, was there a lawsuit? MR. BURNS: There was a suit brought, but it was settled out of court and there is nothing there that would influence my thinking. MR. McCANSE: You have anticipated me. Could you sit and hear this case and decide it without an axe to grind for the injured party or the defendant, in light of that experience? MR. BURNS: Yes.'

The unanimous verdict of the jury for defendant was signed, 'Dale K. Burns, Foreman.' Mr. James A. Seibert, who stated that there was a claim pending against him at the time of trial, was stricken from the panel by counsel for plaintiff in the exercise of a peremptory challenge.

Plaintiff's motion for new trial set up for grounds for relief 'the misconduct of jury foreman Dale K. Burns in intentionally failing to disclose, in response to questions propounded by counsel for plaintiff during the voir dire examination of the jury panel, that he had been sued on account of personal injuries suffered by another person, when in truth and in fact said juror had been so sued.' It was further alleged that the failure of juror Burns to disclose that he had been sued was an intentional concealment of a material fact, which deprived plaintiff of the opportunity to examine him as to his feelings, bias and prejudice, and the exercise of a challenge for cause or a peremptory challenge; and that counsel for plaintiff did not know that Burns had been so sued until an investigation was made after trial, and by the exercise of ordinary care he could not have learned thereof until after such time.

The court file in the civil case of Janet Paul, by her mother and next friend, Norma Brown, was introduced into evidence. The petition therein alleged that on August 27, 1961, plaintiff was a passenger in a vehicle which was struck in the rear by a vehicle operated by Dale K. Burns, about five miles west of Sedalia, Missouri, on U.S. Highway No. 50. The prayer for damages for resulting injuries was for $7,500.00. The summons and a copy of the petition were served upon Dale K. Burns on October 19, 1961. An answer was filed, and on December 5, 1961, the court (a jury being waived) awarded the plaintiff a judgment for $1,000.00, which was satisfied of record.

Schubert D. Henry, an attorney, was in 1961 employed as Regional Claims Manager for Consolidated Underwriters Insurance Company. Jerry Bowman, also employed by that company, filed the answer and was present when judgment was rendered in the Paul action. The office file, produced by Mr. Henry, showed that Dale Burns, who was insured in another company, was served with summons, which with the petition went to the office of Jones and Tager. The record of payments of the claim shows that plaintiff was paid $1,000.00, and her mother was paid $500.00. There was nothing in the file to indicate that Burns was contacted or a statement taken from him or that depositions were taken. It was a friendly suit to settle a minor's claim, and was settled less than two months from the time suit was filed.

Dale K. Burns testified that he served as the foreman of the jury in plaintiff's action. He was thirty-one years of age and was employed as a station agent planning loads that went out on airplanes for Frontier Airlines. At the beginning of the trial he heard and understood the question asked of the panel as to whether any member had been sued on account of personal injury suffered by another. He also heard Mr. Seibert answer the question by telling of his experience in being sued. At the time of the hearing he did not recall being sued, or ever receiving anything saying that he had been sued. He vaguely recalled the accident after being shown some copies of statements, and the fact that he had paid $100.00 for the deductible to the lady who owned the car he was driving brought the accident back to his memory. 'Q. And the payment for the damage to the car that you were driving was an unusual experience for you, wasn't it? A. It was--I guess you would call it an unusual experience, yes, sir. Q. In fact, having a collision is an unusual experience for you, isn't it? A. Well, I think that a collision for anybody is an unusual experience. Everybody tries to avoid them as much as possible. Q. And if you were sued that would be an unusual experience, too, wouldn't it? A. I would say so. Q. And if you turned over the petition and summons to your own insurance company, that would be an unusual experience, too,...