Walker v. Holiday Lanes, Inc., 44390

• Court: United States State Supreme Court of Kansas
• Writing for the Court: O'CONNOR
• Citation: 196 Kan. 513,413 P.2d 63
• Parties: Gertrude WALKER, Appellant, v. HOLIDAY LANES, INC., Appellee.
• Docket Number: No. 44390,44390
• Decision Date: 09 April 1966

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413 P.2d 63 196 Kan. 513 Gertrude WALKER, Appellant,
v.
HOLIDAY LANES, INC., Appellee. No. 44390. Supreme Court of Kansas. April 9, 1966.

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Syllabus by the Court

1. It is misconduct for a juror, during trial, to make an independent investigation of a material issue of fact and report the results thereof to the jury during its deliberations.

2. A juror may not be questioned or evidence received, for the purpose of challenging a verdict, about what influenced the mental process of the jurors or concerning the mental process by which a verdict was reached. (Following Kincaid v. Wade, 196 Kan. 174, 410 P.2d 333.)

3. It is misconduct for a prospective juror, who is later accepted, to give a false or deceptive answer to a question on voir dire examination pertaining to his qualifications for the reason that counsel is thus deprived of further opportunity to determine whether or not the juror is impartial.

4. When counsel, in closing argument, makes reference to extraneous matters clearly outside the evidence, and objection thereto is timely interposed, it is error if under the facts and circumstances the only purpose and probable effect of the comments were to produce a prejudicial attitude toward a litigant.

5. In an action to recover damages for personal injuries allegedly sustained by the plaintiff while bowling in defendant's bowling alley, the record is examined, and it is held: The trial court erred in overruling plaintiff's motion for new trial because of (1) misconduct of the jury and (2) misconduct of counsel.

J. John Marshall, Pittsburg, for appellant.

Randall D. Palmer, Pittsburg, argued the cause, and Paul L. Wilbert, Alois R. Bieber and Garry W. Lassman, Pittsburg, with him on the brief for appellee.

O'CONNOR, Justice.

This action was instituted by plaintiff (appellant) Gertrude Walker against defendant (appellee) Holiday Lanes, Inc. to recover damages for personal injuries sustained by her while bowling in the defendant's bowling alley. From the jury's verdict [196 Kan. 514] and the judgment entered in favor of defendant, plaintiff has appealed.

A brief review of the factual background reveals that plaintiff, an experienced bowler, was participating in an afternoon bowling league. When plaintiff's turn came to bowl, she arose from her score-keeping position, and as she attempted the running-and-sliding process preparatory to delivering the ball, her left shoe did not slide. Instead, because of a beverage having been spilled, her shoe stuck to the floor, causing her to stop suddenly, and in doing so, to twist and injure her back.

The pleadings reveal plaintiff's action was predicated on numerous acts of alleged negligence on the part of the defendant, its agents, servants and employees. Defendant's answer denied it was negligent, and affirmatively alleged contributory negligence on the part of the plaintiff.

On the issues joined, the case went to trial. At the conclusion of all of the evidence the plaintiff moved for a directed verdict, which motion was overruled. Following the jury's verdict, plaintiff filed a motion for new trial, alleging misconduct of the jury, misconduct of counsel, error in the trial court's overruling her motion for directed verdict, and other grounds not here important. The motion was subsequently presented to the trial court and was overruled.

On appeal plaintiff raises two points: (1) the court erred in denying her motion for directed verdict; (2) the court erred in denying her motion for new trial because of misconduct of the jury and misconduct of counsel. Since the second point will determine the disposition of the appeal, we shall proceed directly thereto.

Attached to the motion for new trial were affidavits of two jurors who served on the case, Edward J. Cairns and Ben Andrews, which stated, in substance, that another juror, whose name Andrews did not definitely remember but whom Cairns identified as John B. Cann, had announced, after the

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case had been submitted to the jury and while it was deliberating, that during the trial he had gone to the bowling alley and had made an independent investigation and inpection of the premises with regard to the location of the chairs, the scoring machines, the posted signs admonishing patrons not to take their beverages into the bowling area, and the bowling area itself. Affiants were unable to recall all of the statements made by Cann in the jury room, but it was Cairns' belief that not only his verdict but also the verdict of other jurors, including Cann, was influenced by these remarks.

[196 Kan. 515] At the hearing on plaintiff's motion for new trial the defendant called as witnesses eleven of the twelve jurors who had served on the case, including Cairns, Andrews and Cann. Pertinent portions of the testimony of Cann are as follows:

'Q. Mr. Cann, were you one of the acting, qualified jurors that tried and brought in a verdict in the case of Gertrude Walker versus Holiday Lanes, Incorporated, case number 21,625, that was tried in this court February 4th and 5th this year?

'A. Yes, sir.

'Q. Did you hear the testimony in the case, Mr. Cann, concerning how the bowling area was laid out-that there were some signs saying that the patrons shouldn't take refreshments down into the bowling area?

'A. Yes, sir.

'Q. Mr. Cann, during the course of the trial did you go out to the bowling alley the evening of February 4th, 1964?

'A. I did.

'Q. And did you during the deliberations of the jury mention that you had been out there and that the signs were in place?

'A. Yes, sir.

'Q. Mr. Cann, during the couring the course of your inspection of the Holiday Lanes during the trial did you also note then besides the signs that the scoring machines were situated in a certain place and the spectators sat and so forth?

'A. Yes, exactly like they stated in here.

'Q. And your purpose in going out there-you wanted to satisfy your own mind-is that right?

'A. Absolutely, yes, sir.

'Q. And I believe also your observation or statement was in the jury room that other people took some soft drinks down to the bowling area?

'A. That is right.

'Q. In other words, Mr. Gann, just generally speaking, you discussed within the jury room during deliberations all the various facets and items you had noticed in your inspection the night before?

'A. No, this and every other one that you observed here-all of them-there was no difference than what they quoted here.

'Q. And you satisfied your mind that night that the testimony you had heard about the condition was the same?

'A. Yes, sir.

'Q. But before going out there you weren't satisfied in your own mind?

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