Western Roofing Co. v. South Park Baptist Church

• Decision Date: 17 May 1909
• Citation: 119 S.W. 495,137 Mo. App. 101
• Parties: WESTERN ROOFING CO. v. SOUTH PARK BAPTIST CHURCH.
• Court: Missouri Court of Appeals

119 S.W. 495

137 Mo. App. 101

WESTERN ROOFING CO. v. SOUTH PARK BAPTIST CHURCH.

Kansas City Court of Appeals. Missouri.

May 17, 1909.

1. COURTS (§ 91)—RULE OF DECISION—COURTS OF SAME STATE—SUPREME COURT.

The Court of Appeals is bound by the latest decisions of the Supreme Court on questions of law.

2. NEW TRIAL (§ 140)—PROCEEDINGS—AFFIDAVITS OF COUNSEL—NECESSITY.

A motion for new trial on the ground of misconduct of a juror must be supported by the affidavit of counsel as well as of his client.

3. NEW TRIAL (§ 140)—PROCEEDINGS—AFFIDAVITS —MISCONDUCT OF JUROR—SUFFICIENCY OF AFFIDAVIT.

A motion by defendant for new trial on the ground of misconduct of a juror during the trial was fatally defective for not stating that defendant's attorneys did not know of such misconduct before the case was submitted.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by the Western Roofing Company against the South Park Baptist Church. From an order granting a motion for a new trial after judgment for plaintiff, plaintiff appeals. Reversed, with directions to reinstate verdict, and render judgment thereon.

Leach, Day & Green, for appellant. Metcalf, Brady & Sherman, for respondent.

BROADDUS, P. J.

Among other things, it is alleged in the motion for a new trial that one of the jurors named Fein, while the evidence was being heard and before the case was submitted to the jury, repeatedly talked about the case with other members of the jury, and with outside parties, and not only discussed the evidence, but discussed matters relating to the defendant within his own knowledge and outside of the evidence in the case. The motion was sustained on the ground of the alleged misconduct of the juror. On the hearing of the motion, Allen C. Austin, one of the jurors, over the objection of plaintiff, was allowed to testify as to what Fein said to him while sitting in the jury box and while they were together on the streets before the case was submitted to the jury. It is sufficient to say that the testimony of Austin went to sustain the grounds alleged in the motion. The plaintiff's objection to the admission of Austin's testimony was that he was not a competent witness to show the misconduct of the juror, and upon the further ground that defendant's motion for a new trial did not affirmatively show that the alleged misconduct of the juror was not discovered or known to the respondent and its counsel before the retirement of the jury. The defendant was a corporation, and was represented at the trial by Glen Sherman and W. E. Burnham. The motion was not sworn to by defendant and its counsel, and did not state that they were not aware of the prejudice of the juror before the jury retired to consider its verdict. It does appear,...