Webb v. Missouri-Kansas-Texas R. Co.

• Decision Date: 03 May 1938
• Docket Number: 34645
• Parties: William F. Webb v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

116 S.W.2d 27

342 Mo. 394

William F. Webb v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 34645

Supreme Court of Missouri

May 3, 1938

Motion for Rehearing Overruled December 17, 1937.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge; Opinion filed at May Term, 1937, August 26, 1937 motion for rehearing filed; motion overruled December 17 1937; motion to transfer to Court en Banc filed; motion overruled at May Term, 1938, May 3, 1938.

Affirmed.

Cooper, Neel, Kemp & Sutherland, Carl S. Hoffman and Frank J. Rogers for appellant.

(1) The court erred in its refusal to sustain the defendant's motion for a new trial for the reason of the failure of juror Lyman Coffin to make full disclosure in regard to matters and things about which he was questioned during the voir dire examination in reference to suits and claims he had had for damages for personal injuries and on account of his willful concealment in reference thereto. Gibney v. Transit Co., 204 Mo. 719; Harding v. Fidelity & Cas. Co. of New York, 27 S.W.2d 779; Shields v. K. C. Rys. Co., 264 S.W. 894; State v. White, 34 S.W.2d 81. (2) The court erred in its refusal to sustain the defendant's motion for new trial on account of the failure of juror Lyman Coffin to make full disclosures in regard to matters and things about which he was questioned during the voir dire examination in reference to suits and claims he had had for damages for personal injuries and on account of his willful concealment in reference thereto, all of which is covered by the twenty-first ground of defendant's motion for new trial. Theobald v. Railroad, 191 Mo. 416; Shields v. K. C. Rys. Co., 264 S.W. 894; State v. White, 34 S.W.2d 81. This principle was approved in Gibney v. Transit Co., 204 Mo. 721, 103 S.W. 47, and, again in State v. Connor, 252 S.W. 717. In the Gibney case, the court quoted with approval the following from Heasley v. Nichols, 38 Wash. 485, 80 P. 769: "If the true condition of his (the juror's) mind had been made known to the court before he was accepted as a juror, he would have been excluded at once. The parties had a right to rely upon his sworn statement, and waived nothing by accepting him as a juror. But, when the attention of the court was called to the condition of the juror's mind in a proper way, it was the duty of the court to rectify the mistake by granting a new trial." (3) The court erred in not sustaining defendant's motion for new trial for the reason that the verdict was so grossly excessive and exorbitant as to indicate and show passion and prejudice on the part of the jury against the defendant in favor of the plaintiff, as more fully covered by grounds three, four, five, six, seven and eight in defendant's motion for new trial.

Madden Freeman & Madden for respondent.

(1) Defendant's objections for cause to five members of the panel were properly overruled. Parlon v. Wells, 322 Mo. 1001, 17 S.W.2d 528; 16 R. C. L., sec. 104, p. 289; Smith v. K. C. Pub. Serv. Co., 43 S.W.2d 548; Rothschild v. Barck, 26 S.W.2d 760; State v. Poor, 228 S.W. 814; State v. Brooks, 92 Mo. 575, 5 S.W. 330; Kennelly v. K. C. Rys. Co., 214 S.W. 237; Pietzuk v. K. C. Rys. Co., 232 S.W. 987. (2) The trial court did not err in refusing to grant a new trial on account of alleged nondisclosure of claims for personal injuries on the part of the juror Coffin, for the reason that this was a matter for the discretion of the trial court, and no abuse of that discretion appears; the court in its discretion was justified in finding: (a) That there was no deception practiced by the juror on voir dire examination: (b) That no prejudice to defendant was shown since (1) the verdict was unanimous and hence even the presence of a disqualified juror (and no disqualification here appears) would be as a matter of law immaterial and nonprejudicial under the rule in Parlon v. Wells, (2) the matters first shown on motion for new trial not disqualifying the juror for cause, the claimed prejudice (to the effect that counsel might have challenged the juror peremptorily) was clearly speculative and conjectural, and this particularly in view of the admission of counsel that he challenged two jurors without claim records because they were "worse jurors" than Coffin, and (3) no prejudice or injustice to defendant appeared as a matter of fact; and (c) that defendant and its counsel had failed to show due diligence in failing to inform the court promptly of the facts discovered, and discoverable, by them from means of knowledge exclusively in their possession. 16 R. C. L., sec. 104, p. 289; 46 C. J., pp. 410, 411; MacCallum v. Printing Co., 221 S.W. 158; State v. Sebastian, 215 Mo. 89, 114 S.W. 522; State v. Baker, 24 S.W.2d 1042; Plater v. Kansas City, 68 S.W.2d 804; Consolidated School District v. Power Co., 46 S.W.2d 174; Turnbow v. K. C. Rys. 277 Mo. 644; McGuire v. Amyx, 317 Mo. 1077, 297 S.W. 968; Dysart-Cook Mule Co. v. Reed, 114 Mo.App. 307; Paul v. Dunham, 214 S.W. 263; St. Louis Ry. v. Real Estate Co., 204 Mo. 565; State v. Olson, 263 N.W. 439; Parlon v. Wells, 17 S.W.2d 528. (3) The trial court was justified in finding that there was no deception practiced by the juror on voir dire examination. Harding v. Fidelity & Cas. Co., 27 S.W.2d 778; Harbison v. Ry. Co., 37 S.W.2d 607; Hart Realty Co. v. Ryan, 288 Mo. 188, 232 S.W. 126; Pitt v. Bishop, 53 Mo.App. 603; State v. Murray, 316 Mo. 31, 292 S.W. 434; Pietzuk v. Ry. Co., 232 S.W. 987; Vogts v. Ry. Co., 228 S.W. 530; Zimmerman v. K. C. Pub. Serv. Co., 41 S.W.2d 582; Gibney v. Transit Co., 204 Mo. 704; State v. White, 34 S.W.2d 79. (a) The verdict was unanimous and hence even the presence of a disqualified juror (and no disqualification here appears), would be, as a matter of law, immaterial and nonprejudicial under the rule in Parlon v. Wells. Parlon v. Wells, 17 S.W.2d 533; Knight v. Kansas City, 138 Mo.App. 162; Murphy v. Fidelity Bank, 49 S.W.2d 670. (b) The matters first shown on motion for new trial not disqualifying the juror for cause, the claimed prejudice (to the effect that counsel might have challenged the juror peremptorily) was clearly speculative and conjectural, and this particularly in view of the admission of counsel that he challenged two jurors without claim records because they were "worse jurors" than Coffin. 20 R. C. L., sec. 27, p. 242; Harding v. Fidelity & Cas. Co., 27 S.W.2d 779; Williams v. Fleming, 284 S.W. 794; Shelds v. Ry. Co., 264 S.W. 890; State v. Hamilton, 102 S.W.2d 642; Zimmerman v. Pub. Serv. Co., 41 S.W.2d 582. (4) The trial court did not err in overruling the objection to the hypothetical question propounded to the witness, Dr. William R. Jackson. O'Leary v. Scullin Steel Co., 260 S.W. 55; Kinchlow v. Ry. Co., 264 S.W. 416; Langeneckert v. Chemical Co., 65 S.W.2d 648; Adelsberger v. Sheehy, 59 S.W.2d 644; Kimmie v. Term. Railroad Assn., 66 S.W.2d 561.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondent, Webb, obtained a verdict in the sum of $ 25,000, as damages against appellant railroad company for personal injuries alleged to have been sustained when one of defendant's trains was derailed. The trial court overruled appellant's motion for a new trial, upon condition that plaintiff enter a remittitur in the sum of $ 15,000. Plaintiff did so and the trial court entered a judgment for plaintiff for $ 10,000. Defendant appealed.

Appellant did not contend at the trial that plaintiff failed to make a case of liability. The sharp issue was the extent of plaintiff's injuries. Plaintiff was employed in the postal department as a railroad postal clerk. On January 21, 1933, plaintiff was on duty on a train operated, by the defendant, between Denison, Texas, and Kansas City, Missouri. When the train reached a point near Crowder, Oklahoma, it was derailed. The mail car turned over into a ditch and plaintiff was injured. Plaintiff introduced evidence that at the point of derailment there was a junction of a new and old roadbed; that the train was traveling at an unusual rate of speed, considering the condition of the roadbed. We need not detail the evidence, as no point is made here as to liability.

Appellant has briefed five points upon which a reversal of the judgment is sought. The first two pertain to the voir dire examination of the prospective jurors. In the third it is contended that the verdict was so excessive as to disclose passion and prejudice on the part of the jury; in the fourth, that the judgment of $ 10,000 was grossly excessive, and in the last assignment it is contended that the trial court erred in failing to sustain appellant's objection to plaintiff's hypothetical question propounded to Dr. W. R. Jackson. We will dispose of these in the order named.

Five of the prospective jurors, on voir dire examination, disclosed that they had had claims or suits for damages for personal injuries. One of the jurors was receiving compensation on a claim for injuries. This fact alone does not justify a challenge for cause. It was not shown that any of the five jurors had had a claim against the defendant in this case. The attorneys are entitled to ask such questions for their own information so as to enable them to intelligently make their peremptory challenges, or to develop further information which might lead to a challenge for cause. Upon the showing made the trial court did not err in refusing to grant appellant's challenges for cause. [Parlon v. Wells, 322 Mo. 1001, 17 S.W.2d 528; Smith v. Kansas City Public Service Co. (en Banc), 328 Mo. 979, 43 S.W.2d 548, l. c. 556 (25, 26).]

The next contention is, that juror Lyman Coffin answered that he had had a claim for personal injuries and upon further questioning detailed the facts with reference thereto. It is...