Smith v. Nickels

• Decision Date: 20 April 1965
• Docket Number: No. 31558,31558
• Citation: 390 S.W.2d 578
• Parties: Joseph J. SMITH, Plaintiff-Respondent, v. Hobart NICKELS, Defendant-Appellant, and Joseph Johnson, Defendant.
• Court: Missouri Court of Appeals

Page 578

390 S.W.2d 578

Joseph J. SMITH, Plaintiff-Respondent, v. Hobart NICKELS, Defendant-Appellant and Joseph Johnson, Defendant.

No. 31558.

St. Louis Court of Appeals, Missouri.

April 20, 1965.

Motion for Rehearing or for Transfer to Supreme Court Denied

May 14, 1965.

Application to Transfer Denied June 14, 1965.

Moser, Marsalek, Carpenter, Cleary & Jaeckel, F. X. Cleary, F. Douglas O'Leary, St. Louis, for defendant-appellant.

James F. Koester, St. Louis, for plaintiff-respondent.

J. P. MORGAM, Special Commissioner.

Plaintiff brought this action against defendants to recover damages resulting from a collision involving three automobiles driven by each of them. Defendant Johnson was in default and did not appear at the trial, and the jury verdict was against him in the amount of $10,000 but in favor of defendant Nickels. This appeal was taken from the trial court's action in granting plaintiff a new trial based solely on alleged errors during voir dire.

The partial transcript submitted does not include any portion of the evidence and it is agreed that the merits of the appeal must be resolved from the following dialogue. With Mr. Cleary speaking for defendant Nickels and Mr. Koester for plaintiff, the questions and objections were:

'Mr. Cleary: (continuing) Now may I ask--thank you, sir--may I ask all of you members of the panel if you were selected to--as a group, one of the 12 to try this case, would any of you have any hesitancy in holding my client blameless, finding in his favor, if you felt that he was not responsible for this accident?

'Mr. Koester: Your Honor, I'm going to object to that question in that it is an attempt to commit the jury to a type of a verdict without first giving them an opportunity to hear the evidence. I think that it's asking them to make an opinion--give an opinion committing themselves at this time without hearing the evidence.

'The Court: Overruled.

'Mr. Cleary: (continuing) Would any of you hesitate to find in favor of my client if you felt that my client wasn't to blame for this accident?

'(Thereupon the following took place at the bench without the hearing of the jury panel:)

'Mr. Koester: At this time I will renew my objection to the additionally given interrogation by Mr. Cleary and ask the Court to sustain my objection, and I'll ask the Court to instruct the jury to disregard that question because it is an attempt to get a commitment from the jury prior to the time that they have an opportunity to hear the evidence.

'The Court: Overruled.'

Appellant's contentions the inquiry was justified may be generally summarized: (1) 'It is a matter of common knowledge (or, at least some of us believe) that a certain number of persons selected for jury duty are of the erroneous opinion that a person who is injured may recover in a case irrespective of the fault of defendant', (2) With the amount sued for having been mentioned, and in view of the non-appearance of the co-defendant, it became necessary to ascertain the juror's 'feeling toward a case of this kind,' and 'to determine whether any juror had a misunderstanding or mistaken belief concerning the liability of the defendant who did appear,' and (3) The questions did not attempt to commit the jury or obtain an assurance they would find in his favor. The debatable opinion expressed in the first point is immaterial and the merit of point two should be conceded; thus, leaving the sole question in point three as to the propriety of the questions as asked.

Certainly the trial of conflicting causes before a fair and impartial jury is essential to justice. As stated in Kendall v. Prudential Life Ins. Co. of America, Mo., 327 S.W.2d 174, 177, "* * * The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury * * *." Research has failed to suggest any distinction between civil and criminal cases. Securing such a jury, however, is not a matter of absolutes and the right to a fair trial is deemed satisfied where the jury panel has been properly tested on voir dire and is otherwise legally constituted. Fundamentally, of course, whether a juror is fair and impartial lies peculiarly in the mind and heart of the individual juror. Whatever lurking prejudice he might have in a particular instance may well be exposed only through psychological analysis. Suffice it to say that such a personalized approach is not within the province of the courts and the practical administration of justice.

Such limitations do, however, suggest that voir dire examination not be unduly restricted. National Bank of Rolla v. Romine, 154 Mo.App. 624, 136 S.W. 21; State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65. However, as with any right it must be curtailed at that point wherein it denies an opponent the same right. In fact, it should be liberally permitted where calculated to expose prejudice; conversely, where it is calculated to create prejudice, it should be denied. In this context, difficulty is frequently experienced in the case of questions having a dual and ambivalent character in that they may, arguably, tend to expose or to create prejudice depending on the subjective viewpoint. An established limitation prevents those questions tending to commit the prospective juror to a course of action, or asking that he speculate what his reaction might be in such manner that he might not feel free to react otherwise. 31 Am.Jur., Jury, Sec. 141.

A late and rather obvious infringement of the rule is found in State v. Katz Drug Company, Mo., 352 S.W.2d 678. The prosecutor outlined facts to be proven and concluded with "* * * if the Court instructs you that that is a violation of the law, will you convict?" The Court said, 'This was an improper attempt to commit jurors before they had heard evidence, instructions of the court or argument of counsel. As we said in State v. Heickert, Mo.Sup., 217 S.W.2d 561, 562: '(C)ounsel has no right on voir dire to cause the prospective jurors to pledge or speculate as to their action in certain contingencies which may later occur or arise during trial. State v. Pinkston, supra (336 Mo. 614, 79 S.W.2d 1046); State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949. The qualified and selected and instructed juror, having been attentive to the argument of counsel and to the reasoning of his fellows, should be free to reach a conclusion satisfactory to him upon the evidence introduced.''

In State v. Pinkston, supra, the prosecutor asked: "* * * if you believe and found from the evidence beyond a reasonable doubt that the defendant was guilty, if you believe from that evidence that the death penalty was proper penalty to follow a finding of guilty, would you vote for it?" The question was ruled improper as an attempt to commit the panel. The proper question to reveal the same 'frame of mind' without a tinge of commitment would be that approved in State v. Swinburne, Mo., En Banc, 324 S.W.2d 746, 751: '* * * 'Do you have any moral, conscious (conscientious) or religious scruple which would make it impossible for you to bring in a verdict of death if you were convinced, beyond a reasonable doubt, that such a verdict is fair and just?' * * *' The comparison emphasizing that even though the information sought may be proper the means of asking...