State ex rel. Goldsoll v. Chatham Nat'l Bank

• Decision Date: 21 June 1881
• Citation: 10 Mo.App. 482
• Parties: STATE OF MISSOURI, TO THE USE OF SARAH GOLDSOLL, Appellant, v. CHATHAM NATIONAL BANK ET AL., Respondents.
• Court: Missouri Court of Appeals

10 Mo.App. 482

STATE OF MISSOURI, TO THE USE OF SARAH GOLDSOLL, Appellant,

v.CHATHAM NATIONAL BANK ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 21, 1881.

1. Where doubts as to the impartiality of jurors arise, upon the voir dire, it is safer to sustain a challenge.

2. Semble that a juror is incompetent who, on his voir dire, swears that he has a “prejudice that will require a considerable amount of evidence to remove,” and which will interfere with his giving a fair trial.

3. Where the wife's ownership of certain personalty is involved, evidence that the husband had the property assessed, and insured, in his name, is not competent against the wife.

4. Testimony incompetent upon the main issue, cannot be introduced merely to contradict statements as to an immaterial matter.

5. A married woman who owns separate personal property in a foreign country and removes with it to this State, is protected in its enjoyment here, independently of her husband's consent.

ON MOTION FOR A REHEARING.--1. A gift expressed to be for the support of the donee, a married woman, and her children, creates a separate estate in her independently of her husband's consent.

2. The earnings of a married woman from a business conducted on her separate account in a foreign country, remain her separate property, without her husband's consent, upon her arrival in this State.

3. Instructions must be considered with reference to the possibilities of their interpretation.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

C. H. KRUM & E. CUNNINGHAM, JR., for the appellant: The juror was disqualified by reason of his prejudice. The disqualifications enumerated by the statute are not exhaustive of the catalogue.-- Lyles v. The State, 41 Texas, 162; Lester v. The State, 2 Texas Ct. App. 432; The State v. West, 69 Mo. 401; The State v. Taylor, 64 Mo. 358; Insurance Co. v. Schueller, 60 Ill. 465; Brittain v. Allen, 2 Dev. 120; Freeman v. The People, 4 Denio, 9. Declarations or statements of the husband are not admissible in evidence against the wife, because the husband is incompetent to testify in a case in which his wife is a party; and if his statements under oath are inadmissible, much more so are his declarations not under oath.-- Paul v. Leavitt, 53 Mo. 595; Hearle v. Kreihn, 65 Mo. 205; The State v. Arnold, 55 Mo. 91; The State v. Jaeger, 66 Mo. 173. A separate estate in a married woman may be created by a parol gift, when the title to the property will pass without a transfer or conveyance in writing.-- Holthaus v. Hornbostle, 60 Mo. 442. The first instruction is also erroneous in that it required the jury to find that there was an agreement between the husband and wife as to the property acquired by her in a business separate from her husband. It is sufficient if the husband makes no claim to such property, and treats it as his wife's, allowing her to deal with it as her own.-- Gentry v. McReynolds, 12 Mo. 533; Coughlin v. Ryan, 43 Mo. 99; Welch v. Welch, 63 Mo. 57.

LEE & CHANDLER, for the respondents: The court committed no error in admitting the insurance policy and the tax receipts for the purpose of showing that Meyer Goldsoll, husband of plaintiff, claimed this identical property, and exercised acts of ownership and control over the same. It was directly in rebuttal of plaintiff's testimony. The court committed no error in overruling plaintiff's challenges of the two jurors of the panel for cause. Rev. Stats. 469, sects. 2795, 2796; Eckert v. Transfer Co., 2 Mo. App. 36; Baldwin v. The State, 12 Mo. 223; McComas v. Insurance Co., 56 Mo. 573; The State v. Hayes, 23 Mo. 287; The State v. Holme, 54 Mo. 153; Keegan v. Kavanaugh, 62 Mo. 230; O'Brien v. Vulcan Iron-Works, 7 Mo. App. 257.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff sues on an indemnifying bond given by the defendants to the sheriff, under a levy of execution upon certain household furniture as the property of Mayer Goldsoll, but which is claimed to be the property of his wife, Sarah Goldsoll, the plaintiff's usee. Damages are demanded in the sum of $4,400. The verdict of the jury gave the plaintiff $153.75. The plaintiff appeals.

A juror on the voir dire, gave answer to questions as follows: “ Q. Have you received any impressions from what you have read about it, which would have any weight whatever with you in coming to a conclusion, or which would prevent you giving an impartial verdict in this case? A. I think I have. * * * Q. Have you any prejudice now that would interfere in your rendering a just verdict as between the parties to this suit? A. I think I have, sir. * * * I have a prejudice against one of the parties in this case, and I don't think I could give them a fair trial. * * * Q. You have no opinion as to the ownership of this property? A. None whatever, sir. * * * I wish to state, before we go into this trial, that I have considerable prejudice in this matter, and while I have made up no opinion particularly with reference to this case, there is a prejudice that will require a considerable amount of proof or evidence to remove. * * * I have full reasons, and a number of them, and I feel somewhat prejudiced. * * * I do not care whom the property belongs to, one way or the other. It is simply a matter of prejudice.” The court overruled the plaintiff's challenge for cause, and the juror was sworn.

Personal prejudice against one of the parties in a cause is not among the statutory disqualifications of a juror. But it is universally held that the special designation by statute of certain causes of disqualification creates no limitation against others not so designated, which are clearly founded in the demand for impartial triers. Chouteau v. Pierre, 9 Mo. 3; The State v. West, 69 Mo. 401.

In Winnesheik Insurance Company v. Schueller, 60 Ill. 465, a juror said that “he had some prejudice in his mind against insurance companies generally; that his prejudice was founded on the fact that he could not comprehend their proceedings, but that the prejudice would not affect his verdict.” It was strongly intimated that the juror was disqualified, though the court refused to disturb the judgment, for the reason that the only errors assigned were errors of law, and the bias of the juror could not have affected the result. Said the court: “A preconceived prejudice against a party may be as difficult to remove as an opinion. A prejudice is, in some sense, an opinion. In Burr's Case, Chief Justice Marshall said: ‘Those strong and deep impressions which will close the mind against the testimony which may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection.’ 1 Burr's Trial, 416.” In Brittain v. Allen, 2 Dev. 120, the court said: “It seems that the judge disregarded all kinds of hostility but that which related to the particular suit there to be tried. I think that the law is otherwise. The juror should be perfectly impartial, and indifferent causes, apparently very slight, are good causes of challenge; and that which is good cause for quashing the array is good cause of challenge to the polls. * * * From these cases, particularly the one which states a suit pending, which implies malice, it appears that general hostility, by which I mean that which is not confined to the particular suit, is cause of challenge.” In Freeman v. The People, 4 Denio, 9, the triers of challenges were sworn to “well and truly try and well and truly find, whether the juror is indifferent between the people of the State of New York and the prisoner at the bar upon the issue joined.” It was held that the words “upon the issue joined” should have been omitted. Said the court: “It is not enough that they [the jurors] are indifferent upon the particular issue to be tried. An actual and thorough impartiality in regard to the parties is required; for no one who labors under prejudice, malice, or ill will towards another can be in a fit frame of mind to act impartially where his rights are in question.”

In the light of these views, we find it difficult to say that the court below was undoubtedly right in overruling the challenge of the juror for cause, in the present case. It is true, as was said by Chief Justice Marshall in the Burr case, that “light impressions which may fairly be supposed to yield to the testimony that may be offered--which may leave the mind open to a fair consideration of that testimony--constitute no sufficient objection to a juror.” But when the juror swears, as in this case, that he has “a prejudice that will require a considerable amount of proof or evidence to remove;” that it is such as would interfere in his “rendering a just verdict as between the parties to this suit,” and would prevent his “giving an impartial verdict in the case,” there seem rather to be present those “strong and deep impressions that will combat the testimony offered against them, and resist its force.” The party subjected to such a prejudice must take the field under a great disadvantage. A bare preponderance of testimony in his favor will hardly suffice for success. But such a preponderance in favor of his adversary, or even an exact balancing of the testimony on both sides, may be so reinforced by the existing prejudice, that the turning of the scale will be easy, in that direction. As the judgment in this case must be reversed for other causes, and the present question can have no bearing in another hearing of the merits, we need only say that, if, in this instance, the admission of the juror to the panel was not clearly improper, it would, at least, have been better to avoid steering so dangerously near the shoals of error. When doubts arise, in such inquiries, an error in favor of the absolute impartiality of jurors can do no harm. But an error the other way may easily defeat the ends of justice.

Testimony was admitted, against the plaintiff's objections, tending to prove...