Sullivan v. Kansas City Public Service Co.

Decision Date14 April 1952
Docket NumberNo. 42209,42209
Citation248 S.W.2d 605,363 Mo. 68
PartiesSULLIVAN v. KANSAS CITY PUBLIC SERVICE CO.
CourtMissouri Supreme Court

Charles L. Carr, Hale Houts and Hogsett, Trippe, Depping, Houts & James, all of Kansas City, for appellant.

Trusty, Pugh & Green, Guy W. Green, Jr., James L. Williams and Arvid Owsley, all of Kansas City, for respondent.

LEEDY, Judge.

This case reached this court, after opinion by the Kansas City Court of Appeals, under the transfer provisions of Const. of Mo.1945, Art. V, Sec. 10, V.A.M.S. and rule 2.06 of this court. The parties will be designated as in the trial court. Plaintiff recovered judgment for personal injuries for a sum within the monetary jurisdiction of the Court of Appeals ($7456). On defendant's appeal, that court held one of the jurors to have been ineligible or incompetent to serve because not drawn or selected in conformity with governing statutes, and for such reason ordered reversal of the judgment and remanded the cause for new trial. On plaintiff's application to this court, the cause was ordered transferred here for final determination. The opinion is reported as Sullivan v. Kansas City Public Service Co., Mo.App., 231 S.W.2d 822, to which reference is made for a more complete statement of the facts.

The casualty occurred about 7:00 A.M., April 2, 1946, at the northwest corner of 8th Street and Grand Avenue, in Kansas City, which is a transfer point on and between defendant's streetcar and bus lines. Grand Avenue runs north and south; 8th Street, east and west. Plaintiff, a passenger, was injured while transferring from a streetcar to a southbound bus. Walking west across Grand Avenue in the pedestrian lane or walkway on the north side of 8th Street, he had reached a point near the bus loading zone at the west curb of Grand Avenue, where there were two standing southbound busses, one parked about 4 feet behind the other. When plaintiff reached a point about even with the front end of the front bus, he noticed the driver 'was closing the door, ready to leave.' He then walked north in the street along the east side of the bus until he reached the space between the two busses, then turned west and walked between them. He was following three other persons through this space, and had gotten about two-thirds of the way through the opening, facing west, when he noticed something pressing against his left thigh. After he entered the passageway, the first bus started forward, then came back to the north, catching and pinning his legs between the rear bumper of that bus and the front bumper of the one behind it.

The point in relation to the juror grows out of the fact that another person of the same name as one of the regularly selected jurors was erroneously summoned and served in the latter's place, under circumstances as follows: George W. Baker, 212 Westport Road, whose name had been regularly drawn from the jury wheels was a white man who had lived at the above address until sometime prior to the time in question, when he moved to Arkansas. The George W. Baker who served on the jury was a colored man who resided at 1620 West 9 th Street. It appears that after the name of George W. Baker of 212 Westport Road had been drawn from the large jury wheel, the sheriff reported that he was unable to serve the summons because Baker had moved. The jury commissioner then looked in the telephone directory for 'George W. Baker,' found such a name with the address 1620 West 9th Street, called by telephone and asked if George W. Baker lived there and was advised in the affirmative. The commissioner then changed the address on the summons (which the sheriff had returned) by striking out '212 Westport Road' and writing in '1620 West 9th Street,' and caused the summons, as changed, to be mailed to 1620 West 9th Street. The Negro, George W. Baker, testified that he had received the summons in the mail and in obedience thereto presented himself for jury service. After an extensive hearing on defendant's motion for new trial, at which the facts pertaining to the matter were fully developed, the court found that 'juror George W. Baker was not guilty of any willful and fraudulent misconduct, and did not use dishonest means for the purpose of getting on the jury, and that defendant was not prejudiced by reason of the service of the juror.'

In substance, the opinion of the Court of Appeals on the point is this: It recognizes the rule that statutes regulating the method and manner of selecting jurors are generally regarded as directory and not mandatory (and the effect thereof as regards granting of new trials), then distinguishes the case at bar from the main point on which the decision rested in Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711, and Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, to both of which matters we agree. It then summarizes the holding of the same court in Doran v. Ross, 240 Mo.App. 823, 221 S.W.2d 756; declares that Secs. 749-765, Laws of Missouri 1947, pages 342-350 (now, as amended in respects not here relevant, RSMo 1949, Secs. 497.010-497.290, V.A.M.S.), prescribe a complete code for the selection of jurors in Jackson County; makes reference to the provision of the seventh clause of paragraph one of what is now Sec. 497.200, supra, and concludes thus: 'In view of the positive language of the statute we are constrained to hold that Mr. Baker was not a qualified juror and was, therefore, an interloper. Defendant was entitled to a decision '* * * based on the honest deliberations of twelve qualified men.' [Citing the Lee and Piehler cases, supra.] Failure to grant defendant's motion for a new trial on this ground was reversibly erroneous.'

The cases involving similar statutory provisions have usually gone off on procedural points, such as failure to comply with RSMo 1949, Sec. 494.050, VAMS, or for failure of the motion for new trial to allege want of prior knowledge of the supposed disqualification. State v. Wilson, 230 Mo. 647, 132 S.W. 238 (overruled on another point); Allen v. C., R. I. & P. Ry. Co., 327 Mo. 526, 37 S.W.2d 607. Such practice matters were sought to be injected into this case for the first time on motion for rehearing in the Court of Appeals. We have concluded to brush them aside, and to consider the ultimate question of the supposed disqualification in its broadest aspect, it being determinable as one of statutory construction.

Defendant relies heavily upon State v. Rouner, 333 Mo. 1236, 64 S.W.2d 916, 92 A.L.R. 1099, which involved the selection of an entire panel. There selection by the judges of the county court in private session in a secret closed room, and in the absence of the clerk, was held to constitute such a violation of the statutory safeguards thrown about the process of selecting jurors as to render the error prejudicial and reversible.

In the more recent case of State v. McGoldrick, Mo., 236 S.W.2d 306, 307, also involving an entire panel, the procedure was held not to be a substantial compliance with the statutes. In reaching that conclusion the court pointed out some of the reasons underlying legislation prescribing the manner of drawing juries and cites authorities to this effect: '* * * the object being as far as possible to procure a fair and impartial jury and to obviate the possibility of packing juries or selecting them with reference to particular cases, and also to equalize the burden of serving on juries among all persons qualified therefor.' State v. Emrich, Mo., 237 S.W.2d 169, involved the same question and was decided accordingly.

State v. Thursby, Mo., 245 S.W.2d 859, and Doran v. Ross, supra, are so readily distinguishable on their facts as to require no discussion. In both instances the objection went not to a single juror, but to the integrity of the entire panel, because a large number of the general panel (from which the trial panel was ultimately selected) had been excused by a deputy sheriff in violation of the statute which makes it the personal and official duty of the judge alone to hear and determine the validity of excuses presented by veniremen for dismissal from jury service. We find nothing in any of these cases to indicate that a mere mistake or informality in connection with the selection of a juror or jurors will have the effect of vitiating the trial, where, as here, the trial court has heard the proofs pro and con on the subject, and is convinced that no prejudice resulted.

We deem the Court of Appeals' interpretation to be erroneous, because too literal and narrow, and as being out of harmony with the spirit and intent of the statute. The first paragraph of Sec. 760 (now Sec. 497.200) provides that persons of certain enumerated classes (such as those under 21 years of age, of bad reputation or without visible means of support, convicted of felony, etc.) shall not be permitted to serve as jurors. The seventh clause of that paragraph makes the prohibition applicable to 'any person not drawn or selected according to the provisions of this article.' Is not the effect of the opinion to make these provisions mandatory, and a violation of them, however...

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  • Chiodini v. Terminal R. Ass'n of St. Louis
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    ...v. McCullen, 357 Mo. 686, 210 S.W.2d 68; Rosenblum v. St. Louis Public Service Co., Mo.App., 242 S.W.2d 304; Sullivan v. Kansas City Public Service Co., 363 Mo. 68, 248 S.W.2d 605, and Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360. In simple fact situations a recovery on t......
  • Timmons v. Kilpatrick
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    ...v. Horton, 337 Mo. 379, 84 S.W.2d 621, 626; Sullivan v. Kansas City Public Service Co., 241 Mo.App. 56, 231 S.W.2d 822, 825, and 363 Mo. 68, 248 S.W.2d 605; Smart v. Raymond, Mo.App., 142 S.W.2d 100, 103; Wyler v. Ratican, 150 Mo.App. 474, 131 S.W. 155, 157. In Dempsey v. Horton, this court......
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    ...left and applied his brakes bespeaks negligence as a matter of law. In support of that contention, he cites: Sullivan v. Kansas City Public Service Co., 363 Mo. 68, 248 S.W.2d 605; Block v. Rackers, Mo., 256 S.W.2d 760; Happy v. Blanton, Mo., 303 S.W.2d 633; Hall Motor Freight v. Montgomery......
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