Tate v. Giunta
| Decision Date | 10 April 1967 |
| Docket Number | No. 52137,No. 2,52137,2 |
| Citation | 413 S.W.2d 200 |
| Court | Missouri Supreme Court |
| Parties | Joseph C. TATE, Appellant, v. Pat Joseph GIUNTA, Respondent |
Thaine Q. Blumer, Blumer & Wright, Kansas City, for appellant.
John C. Russell, Kansas City, for respondent.
In this jury-tried action for damages resulting from a vehicular collision in Kansas City, Missouri, which occurred on May 27, 1964, plaintiff Joseph C. Tate received a verdict in the amount of $30,000. Defendant Pat Joseph Giunta filed a motion for new trial which was sustained by the trial court. Plaintiff appealed.
The determinative question is whether the trial court was justified in sustaining defendant's motion for new trial on the ground that the court, on voir dire examination, erroneously denied defendant's challenge for cause of juror Charles A. Blackburn. The record in this regard reads as follows:
'CHARLES A. BLACKBURN, having been previously sworn, testified:
EXAMINATION BY MR. RUSSELL:
Q Mr. Blackburn. A Yes, sir.
Q You stated that you had been injured in--ten years ago, was it?
A Yes; my back.
Q And how long did that back continue to bother you?
A Well, it's never really cleared up.
Q Still bothers you on occasion? A Comes and goes. I mean if I lift something wrong, why, I could get--have trouble with it, and I go back to the chiropractor for maybe two or three times and it is all right again.
Q When was the last time you went to a chiropractor?
A About a month ago.
Q Because of this old injury? A No, I go every so often anyway, I go back for treatment.
Q Any specific reason that you go back?
A Oh, if it goes to bothering me a little bit or something I might have a treatment or two and that will be all for quite a while.
Q That is the reason, then, you are going back to the chiropractor is because of the back? A Yes.
Q Well, now, Mr. Blackburn, you feel that the fact you have this back injury that has been--that's lingered on all this time, and if there's evidence in this particular case that the plaintiff has sustained a back injury--
A That's the reason. I didn't think of it until the last and I didn't have a chance to tell you.
Q Would that influence your thinking in this case?
A I don't believe so. I believe I could hear the evidence and weigh it.
Q You think you could divorce the pain that you have undergone and experienced in your back as completely different or apart from his, or would you associate that in any way?
A I don't believe I would associate it in any way, because I don't believe you can actually tell what somebody else is doing in pain or something like that.
Q You don't feel that the back injury that you sustained would in any way influence you? I mean--I'm talking about a hair's breadth now, one way or another. If it would, say so.
A Well, like I say, you never know for sure, I mean there's nothing positive; you would have to weigh the evidence and everything on a case.
Q The question, as I understand the law anyhow, is whether or not you could hear the evidence that would be developed at this trial, weigh the medical testimony offered on each side, listen to the Court's instructions, and then render a verdict fair and impartially to both sides, absent any feeling that you have already developed favorable to one side or the other. Now, can you do that or not?
A Well, I believe so, but I still think that you still have a little there that you can remember back to something like that.
Q I don't think it is necessary that you be called upon to forget your own experiences because we all carry those with us, even in the jury room, but the question is can you fairly and truly decide the case between these parties based on the evidence.
A I believe so.
THE COURT: I think the sum total of this witness' statements, a very candid statement, that like all of us he has certain things in his experience that makes him understand certain things more than something that he hasn't experienced, but he says that he can judge this case by the evidence that is on the stand and determine it according to that evidence and the instructions of the Court. Therefore, he will remain on the panel.'
Defendant's motion for new trial reads in part as follows:
The trial court entered the following order: 'Defendant's Motion for New Trial is sustained on grounds 4 and 7 of said Motion.' We need consider only ground 4 of the motion for new trial on this appeal.
The rules to be considered in our determination of the question presented are well settled. 'Trial courts have wide discretion in passing on motions for a new trial where there is error in the record but the power of the trial court to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of issues of fact.' Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993, 995, 125 A.L.R. 674. Questions concerning the qualification of jurors are 'questions of fact and matters affecting the determination of issues of fact,' and involve the exercise of a discretionary power. Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643; Moore v. Middlewest...
To continue reading
Request your trial
-
Brown v. Bryan
...342 Mo. 394, 116 S.W.2d 27, 29(5); McMonigal v. North Kansas City Development Co., 233 Mo.App. 1040, 129 S.W.2d 75, 83(14); Tate v. Guinta, Mo., 413 S.W.2d 200, from determining if any juror 'has formed or expressed an opinion concerning' the case, Section 494.190, V.A.M.S., or from determi......
-
Dorrin v. Union Elec. Co., 39454
...of sound discretion as to the law of a case. " ' " Wims v. Bi-State Development Agency, 484 S.W.2d 323, 326 (Mo. banc 1972); Tate v. Giunta, 413 S.W.2d 200 (Mo.1967). In Highfill v. Brown, 340 S.W.2d 656 (Mo. banc 1960), the trial court's action in granting plaintiff's motion for new trial ......
-
Asbestos Litigation, In re
...mandate of trial by jury has generally been construed to embody concepts of trial before fair and impartial jurors. Tate v. Giunta, Mo.Supr., 413 S.W.2d 200, 203 (1967); Moore v. Middlewest Freightways, Mo.Supr., 266 S.W.2d 578, 586 (1954). Some jurisdictions have held that it involves a tr......
-
Hawley v. Merritt, 146
...to grant a new trial for error involving questions of fact and matters affecting the determination of fact issues. Tate v. Giunta, Mo., 413 S.W.2d 200, 202(1); McCandless v. Manzella, Mo., 369 S.W.2d 188, 190(2). Granting a new trial because of error in admitting evidence or because imprope......