Triplett v. St. Louis Public Service Co.

• Decision Date: 21 February 1961
• Docket Number: No. 30554,30554
• Parties: Theodore TRIPLETT, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 670

343 S.W.2d 670

Theodore TRIPLETT, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.

No. 30554.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1961.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 24, 1961.

Frank B. Green, St. Louis, for defendant-appellant.

Donald S. Hilleary and Harry L. Hilleary, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

This is an action to recover for injuries and damages alleged to have been suffered when an automobile owned and operated by plaintiff was struck from the rear by one of defendant's streetcars. In brief, the contested factual issue was whether plaintiff, intending to make a left turn, had stopped ahead of the streetcar for a sufficient length of time for the operator to have stopped, or whether plaintiff cut in and came to rest so closely ahead of the street-car that the operator could not stop in time to avert the accident. Verdict and judgment below was for plaintiff in the sum of $15,000, and defendant appealed.

Three assignments of error are raised by defendant. The first two relate to plaintiff's instructions deemed to be prejudicially erroneous, but in view of the conclusion we have reached as to the third assignment, and the opportunity plaintiff will have to modify his instructions on a retrial of the case, they need not be considered.

Defendant's third point is that it should have been granted a new trial because on voir dire examination one of the jurors made a material misrepresentation as to his qualifications, in that he denied that he had ever made a claim or filed a suit, when, in fact, he had filed a suit to recover for personal injuries and damages to his car; and that the defendant did not learn of the misrepresentation until after the conclusion of the trial of the present case. The record shows that on voir dire examination Juror Heihn was asked the question by defendant's counsel, and answered, as follows:

'Mr. Green: Mr. Heihn, I will ask you the same question. Have you or any member of your family or someone living in your household ever had a claim or lawsuit against any person or company?

'Mr. Heihn: No, sir.'

A hearing was held on defendant's motion, and Heihn was called as a witness in support thereof. He admitted that in 1957 he had filed a suit in the Magistrate Court of the City of St. Louis against William H. Luyties and the Walker Pharmaceutical Company, in which he had sought a judgment for personal injuries and damages to his automobile resulting from a collision of Luyties' car with his. He stated that he had been knocked unconscious in the accident that his shoulders and neck were injured; that he had suffered from osteomyelitis before the accident, and that afterwards circulation difficulty developed which resulted in an ulcer on his right leg; that he was under the doctor's care for about a year succeeding the collision, and would have to return because the difficulty with his leg was starting all over again; that he was forced to wear an elastic bandage, and would have to do so the rest of his life; that the damages to his car amounted to about $285, but that instead of having it repaired he had sold it for junk, receiving $35 for it; that following the accident he had not been able to work for approximately seven months, during which time he could hardly walk; and that figuring everything, he had lost over $2400 as a result of the accident. Heihn identified his signature on the petition filed in the Magistrate Court, as well as on the release by which a compromise of his suit was effected on December 8, 1959, and testified that he had received the sum of $1500 in settlement.

When questioned as to the proceedings in the present case he stated that he remembered that the Clerk of the Court had sworn all of the jurors to give truthful answers to the questions to be propounded by the lawyers; that he knew he was under oath at the time he answered the questions of the lawyers on both sides; and that he understood that the questions were being asked for the purpose of determining his qualifications to sit as a juror. He admitted that in the voir dire examination that he was juror number 15; stated that he paid attention and listened when all of the jurors were questioned; recalled that a man was excused and that a lady replaced him, and that she in turn was removed but couldn't remember why; rocollected that counsel for the defendant had asked the question 'Have you or any member of your family or someone living in your household ever had a claim or lawsuit against any person or company?' of some of the other prospective jurors but couldn't recall that the question was asked of each and every one; remembered that it was asked several times before he was reached; and recalled that in response to the question some of the jurors told about their claims. Heihn's explanation for his failure to tell of his lawsuit was that he understood the question put to him to be whether or not any member of his family had ever had a claim or suit; that he didn't think the word 'family' included him, and thought it referred to his wife and children; that neither of them had ever had a claim or suit; and for that reason he had answered the question in the negative.

Able and industrious counsel for the respective parties have cited numerous cases in their briefs, all of which we have read and considered, as well as others disclosed by our own research. The principles declared by such authorities are clear and undisputed, and may be concisely restated. The right of trial by jury guaranteed by our Constitution, if it is to be worth anything, must mean the right to a fair and impartial jury. Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459. A litigant is therefore entitled to a jury composed of twelve impartial persons; for although a civil case may be decided by the vote of three-fourths of that number, a party has the right to have that decision, whether for or against him, based on the honest deliberations of twelve such individuals. Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711. It is fundamental that a prospective juror is not the judge of his own qualifications. Bass v. Durand, 345 Mo. 870, 136 S.W.2d 988. And to the end that a party may intelligently exercise his challenges, it is the duty of a juror on voir dire examination to fully, fairly and truthfully answer all questions directed to him. Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278. Hence, a juror's intentional concealment of a material fact may require the granting of a new trial. Woodworth v. Kansas City Public Service Co., Mo., 274 S.W.2d 264. For bias and prejudice on the part of a juror may be inferred from his intentional concealment of such information. Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278. But an unintentional failure to disclose information not directly connected with the case does not necessarily show prejudice on the part of the juror so as to call for the trial of the case anew. Davis v. Kansas City Public Service Co., Mo., 233 S.W.2d 679.

In the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left to the sound discretion of the trial court. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795. Nevertheless, the exercise of such a discretion is subject to judicial review, and if an appellate court concludes from the record that an abuse of discretion unmistakenly appears, it is its duty to reverse the ruling. Piehler v. Kansas City Public Service Co., supra; Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348. In that connection it should be noted that, as has been often said, appellate courts are more liberal in upholding a trial court's action in sustaining a motion for a new trial than in denying it. Woodworth v. Kansas City Public Service Co., supra.

A thorough study of the entire record compels the conclusion that the juror by his answer intentionally concealed the information sought to be elicited from him. The transcript shows that on voir dire examination counsel for the plaintiff asked the panel a number of questions as to whether any of them had ever been a passenger on a streetcar when it struck a stopped or moving...