608 S.W.2d 105 | Mo. Ct. App. | 1980
Defendant Charles Brown appeals a judgment of $20,000 entered upon a jury verdict in favor of plaintiff Michael Marshall. The litigation arises from an accident which occurred on October 23, 1975, in which plaintiff’s motorcycle was struck in the rear by defendant’s automobile. Plaintiff had pulled to a stop at a stop sign. Defendant testified that his attention was momentarily diverted, that when he redirected his observation to the roadway, he saw the motorcycle for the first time, but that it was too late to brake or swerve to avoid hitting it. Finding merit in one of defendant’s five assignments of error, we reverse and remand for a new trial.
Defendant first alleges error in the trial court’s refusal to permit the questioning of the panel on voir dire as to whether any of the panel members would be prejudiced against defendant because he was black. Plaintiff in this action was white.
Defendant cites Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), as the primary support for his argument. In that case, tried in federal district court, the Supreme Court overturned the conviction of a black defendant for the murder of a white policeman because of the trial court’s failure to question the venire panel regarding the possibility of racial prejudice. The Aldridge holding was grounded on the “essential demands of fairness,” Id., 310, 51 S.Ct. 471. A subsequent case, Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), reversed a criminal conviction for a similar reason and expressly based its holding on Fourteenth Amendment due process grounds.
However, subsequent cases have qualified, or at least explained, the Aldridge-Ham rulings. In Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), the Court found no error in the trial court’s refusal to permit voir dire questioning concerning racial bias, and accordingly upheld the conviction, in a Massachusetts state court, of a black defendant for the murder of a white security guard. The Court there
On the record of the instant case, we find a similar lack of support for the argument that there was a “significant likelihood” that defendant’s trial was infected by racial bias. In Ham, a racial element was inextricably part of the case: defendant attempted to show that local authorities had a motive to bring false charges against him, a motive based on defendant’s race and on his activities concerning racial issues. The case at bar contains no such element. Moreover, in this case a white plaintiff complains of a black defendant’s negligence in a common type of automobile accident. An allegation of that type of negligent conduct is in our view much less likely to inflame racial passions than was the criminal narcotics charge brought against defendant in Ham.
Prior to plaintiff’s voir dire interrogation of the panel, defense counsel and the court concurred that inquiry into possible racial bias was unnecessary. We do not believe it highly significant that two black veniremen subsequently admitted a bias against plaintiff, when the only stated ground for that bias was plaintiff’s occupation. Therefore, on the basis of Ristaino, we reject Aldridge and Ham as support for an argument that defendant had a constitutional right to submit the question to the panel.
We turn then to the question of whether the requested interrogation is required under Missouri law.
Absent any requirement in Missouri law of voir dire questions on possible racial bias in this type of a case, we must look to the general rule governing voir dire examination. Such examination is largely a subject for the trial court’s control in the exercise of its discretion. The appellate court will interfere with the trial court’s rulings only when there has been a manifest abuse of the court’s discretion and when there is a probability of injury to the defendant. Hill v. Boling, 523 S.W.2d 867, 873 (Mo.App.1975); Bunch v. Crader, 369 S.W.2d 768, 771 (Mo.App.1963). For the reasons enunciated
Defendant further alleges that the trial court erred in refusing to send the jury a hospital report produced after examination of plaintiff shortly after the accident, which report the jury had requested to see during its deliberation. The report had been admitted into evidence but had not been given to the jury during trial. During his closing argument, plaintiff’s counsel had told the jury that he would submit it for their viewing during deliberation if defense counsel would agree. However, the report was subsequently withheld from the jury because of objection by plaintiff’s counsel on the ground that the report identified plaintiff’s religion among his personal data. Defendant now contends that the court’s failure to send the report to the jury, following the offer to do so by plaintiff’s counsel if defense counsel were willing, raised an inference that defendant was withholding damaging information contained in the report. Although we find the tactics here employed by plaintiff’s counsel somewhat unusual, we do not believe that substantial prejudice to defendant resulted therefrom. This, for the reason that both parties presented evidence to the effect that a ruptured disc would not manifest itself until a substantial period of time after the trauma and conceded that the hospital report, made on the day of the accident, showed that plaintiff had a sore back. In any event, we would not expect plaintiff’s counsel on retrial to offer again to send the report to the jury subject only to defense objection.
Defendant further contends that the trial court erred in overruling his objections to references, during plaintiff’s opening statement and the testimony of plaintiff’s expert witness, to the possibility of future surgery to correct plaintiff’s back problem. Defendant argues that plaintiff’s petition made no claim for such damages and that the need for such surgery is wholly speculative.
Items of special damage must be specifically stated. Section 509.200, RSMo.1969. Expenses for medical services are special damages. Moore v. Parks, 458 S.W.2d 344, 347 (Mo.1970); Layton v. Palmer, 309 S.W.2d 561, 567 (Mo.1958). One paragraph of plaintiff’s petition alleged:
“6. That as a direct and proximate result of the said occurrence and injuries sustained by plaintiff, plaintiff has been caused to incur medical expenses for medicines, doctors, x-rays, medical institutions and prescriptions in the approximate sum of $300.00 and will in the future be required to expend further sums, the exact amount of which cannot be definitely ascertained at this time.” (Emphasis added.)
We believe that under Condos v. Associated Transports, Inc., 453 S.W.2d 682, 688-689 (Mo.App.1970), this paragraph states a claim for future surgery with sufficient specificity had plaintiff desired to seek those expenses as special damages.
“Q (By Mr. Koester) Is there anything that can be done for him to get some relief or help?
A I would say bear it as long as you can, and if you can’t you’ll have to have surgery but it’s up to the individual.
MR. ELY: I’ll object to any reference to surgery, it’s not pled and claimed against my client at this time.
THE COURT: Overruled at this time.
THE WITNESS: It’s my opinion that it’s up to the patient himself, unless there is some tremendous evidence of neurological evidence of leg problems, numbness in the leg, or a dropped foot, and if it ever reached that I would insist he see a neurosurgeon or a competent orthopedic man and have surgery done, but until that time if he’s able to bear the pain, and I don’t know how much pain he can stand, he can carry on because it will not disappear of itself.”
The witness made no estimate of the cost of such surgery. We find Boehm v. St. Louis Public Service Co., 368 S.W.2d 361 (Mo.1963), which presented a similar issue, dis-positive. The court there stated:
“Evidence of the foregoing operations, etc. would have been inadmissible to augment plaintiff’s damages as special items of damage . .. since operations of this kind are not the necessary and inevitable result of the type of injury pleaded. [Citations omitted.] It does not follow, however, that the evidence was inadmissible for all purposes.... Plaintiff specifically pleaded serious, painful, permanent and disabling injuries to the bones, tendons, tissues, etc. of all parts of her leg, disfigurement and impairment of function. Plaintiff had a right to prove the necessary treatment for the injuries which were pleaded. Plaintiff’s counsel’s statements at the time this evidence was challenged clearly indicate that it was offered for this reason.... Evidence as to the ‘mode and incidents’ of this necessary treatment was admissible under the allegations to which reference has been made, [citation omitted], for the purpose of showing the seriousness of the injuries to plaintiff’s leg and her probable suffering.” [Emphasis in original.]
Id., 368-369. See also Condos v. Associated Transports, Inc., supra, 689-690; Gilchrist v. Kansas City Rys. Co., 254 S.W. 161, 164 (Mo.1923). The court in Boehm noted at 369 that plaintiff’s instructions made no reference to surgery as an item of damage and that defendant had the right to offer an instruction limiting the purpose for which the jury could consider the challenged evidence. That situation obtained in this case. We rule the point against defendant.
We believe, however, that a new trial is mandated in this case because of the failure of a venireman to disclose on voir dire that she had made a claim for damages suffered in a previous automobile accident. Intentional concealment of information on voir dire may be grounds for the granting of a new trial, since bias and prejudice of the venireman may be inferred from such concealment. Beggs v. Universal C. I. T. Credit Corp., 387 S.W.2d 499, 503 (Mo. banc 1965); Triplett v. St. Louis Public Service Co., 343 S.W.2d 670, 672 (Mo.App.1961). Unintentional failure to disclose information does not necessarily give rise to such an inference. Triplett, supra, 673. Determination of whether concealment was intentional or not is left to the discretion of the trial court, its ruling to be reversed only upon a clear showing of abuse of that discretion. Beggs, supra, 503-504; Triplett, supra, 673. In that connection, however, it should be noted that appellate courts are more liberal in upholding a trial court’s granting of a motion for a new trial than in upholding a trial court’s denial of such a motion. Brady v. Black & White Cab Co.,
During a comprehensive voir dire interrogation, counsel for defendant propounded this question to the jury panel:
“I’d like to ... ask if there is anyone here that ever had a claim, ever made a claim. In other words, where you were in some sort of accident and you made a claim for injury.... This could be an automobile accident; a motorcycle accident; it could be a slip and a fall on a sidewalk or in a store; ... it could be anything of that type where you were injured and where you said you were injured because of the fault of someone else and you asked for money damages, money compensation for that particular incident.”
Although a number of veniremen responded to the question, Mrs. Shirley Nickel remained silent. Later during voir dire, plaintiff’s counsel asked the panel whether any of them had received a settlement for damages of any kind without making a formal claim or request for such damages. Although her answer was more properly responsive to counsel’s previous question, Mrs. Nickel disclosed her prior accident in the following exchange:
“MRS. NICKEL: I was involved in an accident in an intersection, and I was knocked from the side, but there were no injuries and the insurance company took care of both cars.
MR. KOESTER: Did you go to the hospital?
MRS. NICKEL: No, I did not. I went to the doctor and I had two broken ribs, but when I called her insurance agent, they said they didn’t pay off for anything like that.
MR. KOESTER: They did not pay you?
MRS. NICKEL: No.
MR. KOESTER: Was the fact no payment was made to you because you did not want to be paid, or they did not want to pay you?
MRS. NICKEL: I really don’t know what it was.
MR. KOESTER: Did you ask for a settlement from them?
MRS. NICKEL: No.”
At the hearing on the motion for new trial, it was adduced that Mrs. Nickel was involved in an automobile accident on December 1, 1973. She indicated that she did not recall telephoning the other party’s insurer, the Automobile Club Inter-Insurance Exchange
During his interrogation, plaintiff’s counsel asked Mrs. Nickel individually: “Did you ask for a settlement from [the insurer]?” Mrs. Nickel later explained her negative response to this question by stating that her own insurance company had paid her bills. We find this explanation inadequate. Her statement may explain why she did not litigate her unsuccessful claim, but in no way explains why she gave an inaccurate answer during voir dire denying that she had made a claim. We think it reasonable to infer from Mrs. Nickel’s attempted explanation a belief on her part that, since she received full compensation from her own insurance company, she was not a disgruntled, unsuccessful claimant likely to be biased. A venireman, however, is not the proper judge of his or her qualifications to sit as a juror. Beggs, supra, 503. Giving deference, as we must, to the trial court’s ability to observe the attitude and demean- or of Mrs. Nickel at the hearing, we nonetheless do not think that she offered credible or sufficient explanations for her con-cededly incorrect responses on voir dire.
We therefore remand for a new trial. We recognize that this result may seem harsh, since the defect in question was utterly beyond plaintiff’s control. However, as was stated in Beggs, supra, 503, the constitutional right of every citizen to a trial by jury, to be meaningful, requires a fair and impartial jury. Mrs. Nickel’s conduct on voir dire deprived counsel of the opportunity to insure that his client, defendant, was judged by such a jury.
We do not consider defendant’s final point, contesting the amount of the jury award, because of our disposition of the case.
The judgment is reversed and the cause remanded for a new trial.
. The panel had no knowledge of defendant’s race during voir dire because he was not present at that time. Because he lived in Michigan at the time of trial, he was not to appear until the trial was scheduled to begin, two days after voir dire.
. At the time of defense counsel’s request, the venire panel was composed of seven blacks and eleven whites; the empanelled jury contained seven blacks and five whites.
. The Court indicated that had the circumstances of Ristaino presented themselves to a federal court, the Court’s supervisory directive in Aldridge would have required the trial court to investigate the possibility of racial bias on defendant’s request. Ristaino, supra, 598, n. 9, 96 S.Ct. 1022, n. 9.
. The Supreme Court in Ristaino specifically indicated that the states are free to allow or require questioning not mandated by the Constitution.
. This is the same company about which the panel had been queried by plaintiffs attorney in the “insurance question” during voir dire.
. In fact the first venireman to respond to defendant’s counsel had been previously involved in two accidents and testified that he had received compensation for neither.