*1 o- CO Bryson R. Appellants. Jones, v. Dana Durand
Warren Bass 136 W. 988. Two, February 1940. Division Wright appel- Stinson, Mag Thomson and Conrad Byland, & lants. *2 and Walter Williams, Cope, Cope A. & Hadsell
Charles F. Homer Raymond respondent. A. WESTHUES, Respondent Bass filed this appel- suit C.
lants to recover personal injuries alleged to have been when a car driven appellants delivery awith collided truck driven respondent. There was a 'verdict judgment in respondent’s favor in $20,000, the' sum of judgment from which appealed; conclusion reached us un- renders necessary a statement of the facts on the merits. *3 Appellants, points. briefed two first, needWe consider is, which that the trial court erred in declaring not' a mistrial while the trial in progress was when it was, discovered that' one of the jiitors had failed facts, examination, on voir dire touching qualification his' juror. as a Jufor Miller subject was the of this controversy. Diveley Dr. Bex one appellants’ principal was wit- nesses. The voir examination, dire pertinent insofar as issue, to the' was as follows: Cope: “Mr. Now, any gentleman? is there other' I will ask the same,question also in connection with Bex Diveley, Dr. an orthepedic surgeon bone in the Building, located Professional associated with D'r. ' (cid:127) Dickson. “Venireman W. A. Miller: I have. Cope:
“Mr. your And name is— “Venireman Miller: W. A. Miller. “Mr.'Cope: Diveley Did you Dr. personal treat as a physician, Mr. Miller ?
“Venireman No; my boy. Miller: Cope: “Mr. long How been, Mr. Miller? has that year “Venireman ago. Six Miller: Cope: you “"Mr. Have ever experience Diveley other particular than that professional your rendered ' Son? “Venireman Miller: That is all. . “Thereupon, during the voir examination, dire during general questions Wright Conrad, Mr. following proceed-
ings were had: “Venireman My injured Miller: son-was in an automobile acci ' dent. ‘ ‘Mr. go Conrad : Did that suit to trial ? ‘‘ : No. Yenireman Miller satisfactorily of without disposed itWas “Mr. CoNrad: necessity trial ? Yes. “Venireman Miller: in which manner were with the You satisfied
“Mr. CoNrad: disposed of? get. all satisfied, it was I could Not “Venireman Miller: disposed of? “Mr. CoNrad: Anyway, completely it was Yes. “Venireman Miller: preju- anything in that Was there
“Mr. CoNrad: way a lawsuit ? you or another about one dice No, “Venireman Miller: against defend- You would have no “Mr. CoNrad: experience ? generally, out of that ants No. “Venireman Miller: you they treated though you quite feel don’t “Mr. Even CoNrad: ” answer.)
right (No time? at that try and the record the case panel remained on the Miller Juror Diveley jury. After Dr. made foreman shows- that juror Miller attorney testified, he informed witness, to re- against him, and other doctors filed a suit feeling grew son; ill damages for the death of cover developed then were these: Juror out of that lawsuit. The facts accident, seriously injured in a car Miller’s son had been A filed Diveley. The.patient died. suit was treated to recover involved in the car accident parties .juror death Miller injuries After his son’s son. $10,000 and his associates to recover filed suit damages. charged that the $10,000 punitive petition actual and *4 by injuries juror’s the properly the sustained doctors had not treated cause of his death. negligence the of the doctors was the son and that present the time the prior without trials Both suits were settled Diveley about against Dr. was dismissed tried. The case case was record shows that trial of this ease. The fourteen months before the immediately receiving the in- attorney upon appellants, the for the what he had learned. Diveley, informed the court formation from Dr. investigation, a of the facts He then a further made statement made attorney sug- full, that a. be declared. The and asked mistrial gested he would make the opposing that if the counsel so' desired attorney that was Respondent’s stated that statement under oath. if made necessary. related were not The facts as above treated.as suggested juror that Miller be excused oath. trial court under The attorney jurors. Appellants’ indi- proceed with eleven and the trial ,to .attorney would not willingness so, respondent’s cated his do but appellants’ trial agree. the over proceeded The trial court with then n The, is-here, objection. review.' question for intentionally plain argument juror It for seems too that Miller against failed to the he fact that had had a lawsuit Dr. Dive ley malpractice. for He did disclose that he had had a aris lawsuit ing injuries out of the his automobile accident the son, questions but his answers to were limited that suit. He specifically questioned acquaintance Diveley, as to his and with Dr. anwered the that doctor had treated his Then “Have son. note: you any ever experience Diveley with Dr. other than that particular professional your juror rendered son?” Answer Miller: “That is all.” fact all remains that was not and transpired fully knew it was not. What after the trial dis giving closed that the knew all he was not the information he should, forgotten and that not lawsuit with sought punitive damages. doctor wherein he not actual Note portion a of respondent support affidavit filed verdict:
“I further state I any- that had no or intention desire to conceal thing my particular about to, lawsuit above referred and had Mr. inquired Conrad further ease, and asked me details I of readily would willingly and him informed the ease was Diveley alleged negligent others on account of the my treatment of son after he injuries had received in an auto- accident, mobile and which I alleged treatment had caused death ’’ my son. charge against To refute the juror, that he had talked to other jurors during experience the trial Diveley, about his affidavit following: contains the may
“While there have been presence some casual mention in the jurors my of other Diveley about experience with Dr. in the treat- my ment of son, I suggested never at or time intimated that my experience or way should would in the least react ’’ in the defendants trial of the above cause. In the affidavit the further despite unpleasant stated that his prejudiced. It funda mental prospective law a judge is not the of his own qualification. question That White, is a for the trial court. v. [State a For full of this discussion 79.] point see Theobald v. Transit c. 90 W. l. 354, l. c. duty 359. It is the jurors on voir dire examination to answer questions fully frankly necessary should be attorneys leading ques to resort to or cross-examination to ask tions to divulge ascertain the facts. men hesitate to Honest do not *5 touching information jurors. rule qualification their We as that Miller intentionally neglected divulge information to about his Diveley. lawsuit rule trial We also that the declaring court erred in a do requested mistrial when it was to
875 by given an to a Respondent opportunity so. was mistrial .avoid agreeing excused. This offer was refused. Cases in ruled, assignments court that respondent, cited where this has ground jurors prejudiced were motions for new trial on the that must be affidavits of counsel and client that accompanied prior facts relied on were unknown to them to the of submission in case, point are not here. In case called to this the matter’was prior attention of the trial court to the of the case submission beyond immediately upon the record shows counsel learn doubt that ing Samples facts informed trial court. cited eases the. respondent Trainer, 620, (2d) 131, are: State v. 336 Mo. 80 S. W. 135; Malone, 594,
l. c. (2d) 909, State v. 333 Mo. l. c. S. W. neglect 915. charged against No can be appellants as to the voir dire examination because the was asked his about Diveley Ry. Co., So the case of Chicago, Allen v. R. I. & P. (2d) 607, 37 S. W. not aid re similar cases-do spondent.
Respondent though next insists that even the. trial court ruling, erred in appellants its no because did not resulted dispute liability question contested the of the amount of damages. Appellants vigorously grossly insist that is verdict excessive. íf the evidence of Dr. be true then verdict is grossly Respondent- excessive. insists that the verdict ex cessive and contends even if it matter is the can be taken byof a remittitur. case, however, presents This a situation. difficult There a sharp dispute injuries. was respondent’s as to the extent of At the time respondent of the trial wearing was what is called a collar,” “Thomas which rigid position. held his neck in a There is in evidence the record that this collar could be discarded as soon as icy condition of the Appellants streets and sidewalks cleared. in argument their oral theory may advanced the that the collar also have been >worn impress jury. in a The amount of personal injury primarily question case is jury. a for a That means of course an unbiased unprejudiced jury. In this ease the challenged juror alleged was a prejudiced to have been doctor who awas material question witness for on the respondent’s extent of injuries. That, sharp connected with the dispute in the evidence, say renders difficult what amount for us to would proper be compensate respondent. Respondent cites the case of Webb v. Missouri-Kansas-Texas Railroad 27, in support pre his contention. That case sented a different state of facts. The who the center of the controversy asked if in personal he had had claims for juries. stated that he had and detailed the facts one ease. It twenty-five was afterwards found had about claims, many of which trivial. A trial asked were new because *6 juror hearing
the A the motion had not disclosed the true on facts. defending new trial law firm had disclosed that that suit plaintiff, also defended the suit where and all the information about the numerous claims was in the files of that law firm. But the point. case was not decided on that It is important, however, to notice that in Webb case against any not had a party suit or claim or witness connected hearing prejudice case. The on the motion did not disclose on part juror against anyone of the concerned with the Webb quite picture lawsuit. That is a different from the facts the ease case, by under court, discussion. In a recent Division One this Lee v. Co., 458, 695, Baltimore Hotel 345 Mo. 136 W. (2d) this court said: right by jury guaranteed by
“The of trial Constitution, our if it is to be anything, mean, worth must said, as this court has ‘the right to a fair impartial jury.’ and v. St. Fran- Louis-San [Privitt Ry. (Mo.), cisco Co. . 728.] “Certainly party entitled, also a it, jury is unless he waives to a impartial of twelve qualified though' men. Even three-fourths of them can case, parties decide a civil decision, are entitled have for them or them, on based deliberations .whether honest qualified of twelve men. A man get who uses dishonest means to on a jury, usually does purpose honestly do so for deciding case on the law evidence.” Gibney [See, also, v. St. Louis Transit 103 S. 43,W. l. c. Juror Miller in his affidavit admitted that he men 47.]
tioned his jurors. to other This was highly improper. He failed to fact on voir dire examina tion. That improper. Juror Miller silent remained when he should spoken spoke when he should have remained silent. In cases cited respondent it will be noted that no shown to have part existed on the of the under consideration. example: For Knight In City, v. App. 153, Kansas 119 S. W. disqualification was that he could not read. The court attorneys decided that the disquali waived that fication making a proper inquiry on voir dire examination. The court added that the disqualification of preju was not dicial because the verdict was However, unanimous. disquali such a fication upon entirely stands an footing different than where the disqualification alleged is prejudice. to be It follows judg that the ment in this case must be reversed and the cause remanded for new trial. It is so Cooley ordered. Bolding, (7(7., concur.
PER foregoing opinion CURIAM: The C., Westhues, adopted opinion as the judges of the court. All the- concur.