Schierloh v. Brashear Freight Lines

• Decision Date: 13 March 1941
• Docket Number: No. 37221.,37221.
• Citation: 148 S.W.2d 747
• Parties: SCHIERLOH v. BRASHEAR FREIGHT LINES, Inc.
• Court: Missouri Supreme Court

148 S.W.2d 747

SCHIERLOH v. BRASHEAR FREIGHT LINES, Inc.

No. 37221.

Supreme Court of Missouri, Division No. 1.

March 13, 1941.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

Personal injury action by Hannah A. Schierloh against the Brashear Freight Lines, Incorporated. From an order granting new trial after verdict for defendant, the defendant appeals.

Affirmed.

Mitchel J. Henderson, Thos. E. Deacy, Herbert Jacobs, and Henderson, Deacy, Henderson & Swofford, all of Kansas City, for appellant.

J. Francis O'Sullivan and O. H. Stevens, both of Kansas City, for respondent.

HYDE, Commissioner.

This is an action for $25,000 damages for personal injuries. The verdict (by nine jurors) was for defendant. The court sustained plaintiff's motion for new trial "because of the misconduct of the juror, Marvin L. Partin (who was foreman of the jury and one of the nine who signed the verdict) in concealing material facts touching upon his qualification as a juror." Defendant has appealed from this order.

Juror Partin testified on voir dire that he knew defendant's attorneys Thomas E. Deacy and Judge Mitchel J. Henderson (Judge of the Probate Court of Jackson County); that his acquaintance was "rather slight;" and that he had "no business" relations with them, but "just a passing acquaintance" of a social nature. He also said that he lived at 3911 Cleveland Avenue in Kansas City, was married, and had five children; that he had lived in Kansas City for sixteen years; that he was employed as the auditor by the Southern Freight Audit Bureau, Pattison Building, Kansas City, Kansas; that he had been in the freight auditing business "about eighteen years, * * * considering accountant, clerk, with the railroad companies and things like that;" that, in his present employment, he had "been with them (Southern Freight Audit Bureau) a total period of time (since 1920) of seven years but last (had) only been with them for two weeks;" and that he knew one of plaintiff's attorneys (Maurice O'Sullivan), as well as defendant's attorneys named, but that the nature of his acquaintance with all of them "is very slight." Usual general questions were asked the entire panel as to whether there was "any reason, whether mentioned or not, why he could not sit and listen to the evidence and return a fair and impartial verdict," or "why he believes he should not sit as a juror in this case." Juror Partin made no response to these questions.

Plaintiff had evidence, at the hearing on the motion, tending to show the following facts: From November 22, 1926, to September 5, 1930, Partin was a fireman on the Kansas City Fire Department. He was reinstated January 25, 1933, and resigned June 24, 1933. He went back again April 11, 1934, and "left the Fire Department on October 31, 1936 * * * on a leave of absence * * * his resignation was not entered on the books until April 3, 1937." From January 4, 1937, to June 8, 1937, he was secretary (during the 1937 session of the General Assembly of Missouri) to State Senator Seelig of Jackson County. Both before and after his service in Jefferson City he was deputy clerk in a Jackson County justice of the peace court. On August 10, 1937, he was convicted on a charge of "drawing check with intent to defraud," and sentenced to "60 days imprisonment in the county jail." He was committed to jail and served this sentence. He was also "bound over to the criminal court for trial" on a felony charge of "embezzlement by bailee." There was also evidence of other charges pending against him. On September 15, 1937, Partin's wife filed an information in the Probate Court of Jackson County alleging that he was "a person of unsound mind." On October 5, 1937, he was found to be "a person of unsound mind" by the Probate Court and his wife was appointed guardian. On October 30, 1937, he was taken from the Jackson County jail to State Hospital No. 2 at St. Joseph. He was committed there by the County Court of Jackson County as an indigent insane person. At the State Hospital his condition was diagnosed as "dementia praecox, paranoid type with nephritis," with such symptoms as "expressing delusions grandiose in type, hallucinations not elicited" and "exaggerating facts about himself and his family." On February 13, 1938, he was paroled by the State Hospital to his wife, and was finally discharged on December 31, 1938. The trial in this case, in which Partin was the foreman of the jury, and one of the nine signers of the verdict, was held May 25th to 27th, 1938. On January 23, 1939, the Probate Court of Jackson County found that "Partin had been restored to his right mind and is now capable of managing his affairs," and his guardian was discharged. The record does not show that Judge Henderson heard the case (or any part of it) in the Probate Court (a special judge did hold the first hearing); or that he took part in the trial of this case, although other members of his firm did.

It was further shown that Partin was a member of the "South Side Regular Democratic Club" of which Judge Henderson was president, and of which the Director of the Fire Department was an officer. The Fire Department Director said "Mitch and I run the club, no question about that." According to his testimony, when Partin was a fireman "he worked twenty-four hours on, and twenty-four hours off. During his twenty-four hours that he was off he made the Club his loafing place and headquarters and many times did collect dues there because he was handy and he would be sitting around the desk and they would just let him collect the dues and keep a record of them, but I don't think he ever had an official capacity. I believe they did call him Corresponding Secretary around there at one time. * * * Whenever anybody wanted a letter written or anything they would holler for Partin. He got to be known as Corresponding Secretary in more of a kidding way than anything else." It was also shown that plaintiff's attorneys, upon investigation, "couldn't find any place where there was any record of any Southern Freight Audit Bureau," for a period of thirteen or fourteen years in Kansas City, Kansas; and that there was no building there known as the Pattison or Patterson Building. They found that Partin, in 1938, had made an application for a position with the Kansas State Grain Department and gave as his residence in Kansas City, Kansas, the address of a funeral home; that he gave as a business address a one-story building in which there was a confectionery store and a barber shop; that one of the barber's name was Patterson, who was justice of the peace; and that Partin got mail there. There was no evidence to show that Partin had ever done auditing work (and defendant successfully objected to his wife answering a question as to whether he had); or that there ever was any such company in existence as the "Southern Freight Audit Bureau." In fact, defendant offered no evidence (except the voir dire record) at the hearing on the motion. Partin, although present at the hearing, was not called to testify.

Defendant says that the motion for new trial was legally insufficient because, it was not verified by affidavit of plaintiff. (There was an affidavit by one of plaintiff's attorneys.) However, the motion was sufficient, to authorize the court to hear oral evidence on the issues raised, under our recent ruling in Reich v. Thompson, Mo. Sup., 142 S.W.2d 486, 129 A.L.R. 795, in...