*1 City Appellant. Company, Public Service Kansas Mae Middleton (2d) W. 154. One, April 18, 1941. Division Rehearing Denied, 1941. June Carr, Charles L. Watson, Ess, Groner, Whittaker, Barnett William A. Kitchen Herbert for appellant. C. Hoffman *2 Schwimmer, Raymond & Keating, Burris and Walter A. Breclehoft respondent.
110 damages personal for for an action
DALTON, C. This is cars street defendant’s on one of injuries. passenger Plaintiff was and car the street between injured occurred when collision and was $10,000, for plaintiff a verdict The jury returned automobile. appealed. entered, and defendant judgment which Eighth street car on street riding on an eastbound Plaintiff was car, on of the strеet near rear City. seated She was in Kansas inter- at the occurred collision side, facing The the north south. upward Plaintiff was thrown Eighth Oak streets. section and edge rail on hit an iron first .the off to the floor. She and the seat per- received severe floor. then She struck seat injuries. manent ipsa loquitur res negligence charged general under petition the time that at to show evidence tended doctrine. Plaintiff’s talking at(jthe right door front standing a man was collision traveling 20 to car; the street car оperator of the street it or slow down 25-35) hour; stop (and per miles collision; that was no street, there or before entering on Oak the inter- car entered the street warning gong bell or sounded as .applied collision; brakes were section before sedan, automobile, a 1930 Chevrolet collision; before the hour; traveling per on at 5 to miles north Oak street the intersection and a little collision occurred near the'center of stop stopped crossing for the at a east; that the driver had automobile slowly Eighth then sign south side of street started across; car about feet did not see street until was away; sharply the left in avoid the col- that he turned an effort to right put brakes; front end of the street lision and his swung car front it arouud hit left wheel 'of automobile *4 right hit the of street so that the left rear of the automobile side the glass car; car and broke window in the street that the front and the of automobile was knocked over the onto the sidewalk end- curb Eighth on of the south side street east of Oak street.
Defendant’s that evidence tended to show the street slowed down ear momentary stop street.; operator and to at tapped came Oak that the the warning passengers as a to gong put power twice as he the on to move the forward; ear was talking anyone; that he to' that stop sign there was a for street, north and south on Oak traffic which Highway traffic; street carried sign No. 71 that stop there no was for east Eighth west traffic on street; that the streеt' and car traveled slowly across the intersection traffic; which was of clear automobile that it the speed attained of 15 an miles hour when the collision occurred; that the 43 foot street car had cleared intersection, the except feet, for 9 to 15 the collision occurred; operator when that the first glass knew of the the collision when was knocked of out the third right window from the rear on the the car; side of street that no
Ill the to the intersection as street car аutomobiles were close started across; day pavement cold and the covered with that was a was ice; approached automobile had the south the Chevrolet hour; stop- that it speed per at of 25 to miles did not the Eighth street; sign at the automobile skidded into the stop right-hand car; of side the street an effort to avoid the col- Eighth street; lision, the automobile turned into was left fender of the automobile struck the street when automobile car car; angle degrees an of 45 to the street there was was at no at front the street ear there there; collision of and no marks right car; marks on hand side street automo- bile car were rear end stopped street so that the of each and about even with the east side of Oak street. respective theories, parties their support offered evi- of showing
dence of the automobile dents in left pictures front damage headlight fender lamps, board, to running body operator of the automobile. Defendant’s testified that there edge just were marks on side of street car under the tank; right the rear of the air that these on marks were the corner or edge edge car, body, of the street the bottom of the street car on 10 inches behind the air tank. He the body said of the street car track; inches above the that the wheel of a 1930 Chevrolet higher. was 31 inches and the fender a little evidence did not show the amount of inflation of the tires nor the load of auto- mobile, persons other than that automobile traveling contained two from Texas pictures to Iowa. The of street in the car, involved accident, the body show the car higher of sides was much body than the of the car at the front where constituted body bumper. the front type damage automobile,
Because of the to and in view respective parties, theories of the developed an issue height trial as to the relative of the left front fender the automo- body and the bile of the street car. Defendant’s witnesses sаid that the front or part enough lower left front fender low go body under the car street side but not the top Appellant fender. insists this was vital issue in the case and aid in determining whether the- ear street struck the automo- bile or the automobile struck the street car. Several defendant’s were sharply witnesses plaintiff’s cross-examined counsel toas any part whether go body automobile could or would under the of the street car. Error assigned is first on the in refusing grant court’s action alleged new trial because misconduct The motion
for a accompanied new by trial was verified and certain affidavits. filed, by Additional affidavits were plaintiff both subsequently and defendant, A by hearing the court. permission of was then had on 112 tes- and oral in evidence received the and all were motion affidavits signed the verdict Tudor, who juror of
timony heard. The affidavit over trial, extended during the which foreman, as that disclosed (naming or -car establishments days, he various several visited used model of the same a 1930 Chevrolеt automobile locating them) seeking found visited he place evidence; at the seventh mentioned in that height left finding it, the and measured such automobile fender at height the front left 36 rear- fender inches and the at of Fifteenth corner inches; 33 he car that measured street one men- thought resembled the and he streets, Oak a car which bumper evidence, front to in and distance from the tioned found the the street car to be body to 25 pavement be inches and juror, of the same Another affidavit pavement. inches above the measurements in that the plaintiff, filed and offered stated affidavit, not influence his verdict made, he stated his first did as in change any member result, nor nor it affect the verdict did deliberate, retiring jury. on to He jury immediately said the discussion, plaintiff, and without and verdict voted ten wholly at the trial. solely the evidence introduced and based used persons one of the Defendant called as two from witnesses day juror morning car lots visited on Ifist present recognized Tudor, One who in trial. of them motion, as man who came hearing courtroom for on lot. him as identify the used car The other witness could testimony person, man. Their identified tended to show ¿s juror morning, lot that Tudor, one came to the car while used they talking looking at a 1931 that he was other; each sale; Chevrolet; requested he and that he was not for told was charge permission person received to measure the from Chevrolet; height fender; he the front that measured height the front fender of the 1930 and 1931 was the Chevrolet height depended same; on the tire approximately same up- size whether the tires were or flat. of the witnesses One quoted (Tudor) buy he did not want to saying man as car; it. was on wanted measure height inquired the 1930 whether if was the same as Chevrolet approximately was advised that it was the same. This said witness (Tudor) carpenter’s folding open. partly man rule On cross-examination, he did not see the witness said the measure- actually ments of the fender made.
Another car lot testified witness another used thаt at about 8:30 as the day date shown record last a.' M., trial, recognized person man, (Tudor), whom he as the came him that place to his and advised he was a jury business Chevrolet, wanted to measure but witness see and one; height have he wanted to find the Tudor said difference *6 of The affidavits Chevrolet. ground of tbe from in evidence. offered filed and were also witnesses had been these three as to measure- affidavit of one Smith the Defendant offered further the time streets near Fifteenth and Oak passing cars ment's street of car made the street Tudor, the measurements by Mr. when fixed cars witness, bumper front on the by According this him. to inches 19y2 to that time varied passing point that about 24% of the street cars height of the and the side above pavement, According to pavement. inches above the varied from to 33% 29% time point at that affidavit, passing 14 ears that his none of the in involved the collision. street car were of the same series as the who interviewed Spurrier one affidavit of Plaintiff further оffered the filed, concern- and took his affidavit Tudor, Mr. after the verdict ing his conduct. the effect juror Tudor rebuttal, in the affidavit to
In addition to made, plaintiff by was not the measurements that he influenced general jurors, same form nine all the affidavits of on offered retiring jury immediately after to the and to the same effect, that jury, discussing any of without room to deliberate on a verdict plaintiff; to that evidence, ten by ballot, voted favorable trial; solely verdict was based evidence adduced оn brought were taken con- only the out into measurements evidence; based on that jury; sideration the verdict was jury that, any if the deliberations during mention was made not mentioned any measurements of street car automobile consideration and evidence, such were not taken into measurements arriving did not verdict. influence motion, opening hearing At counsel plaintiff’s juror Tudor, ground moved to out affidavit of strike verdict, impeach to the affidavit of the witness tended ground Spurrier, that it was irrelevant immаterial and on the juror concerned and conversations of made after statements you your suggest verdict. The court “Let me make said: -testimony, you motion to strike have heard and then after we present my . . I thing can the whole on the. law . will withhold on that now.” offered, plaintiff’s When affidavits were ruling objected juror attempt counsel to the as affidavit Tudor to juror impeach use the affidavit of a his verdict.- also Counsel objected containing hearsay the other to juror affidavits as and statеments object made Tudor. further “I Counsel said: further to the any person affidavit any juror, deals with statement this juror.” and also with the conduct said: ‘‘Let’s get all evidence in first.” When started counsel to read the objected Tudor, juror affidavit of counsel to its introduction court said: “I will the ruling reserve on that.” When several being from the witnesses car lots were examined, plaintiff’s used :114 objected concerning' with tbe conversations testimony
counsel any contended juror any and to statement made purposes for the incompetent statement aiiy the conversations were stated that motion. Defendant’s counsel juror’s explain the statements, offered not the truth of the but acts. n statements ruling objections by plaintiff’s counsel to *7 ‘‘ then
Tudor, testimony, will hear ‘the further said: I court ... it pass testimony the case upon admissibility with ’’ I have now. No will all if I have then same view be excluded hearing, exceptions and, by respondent close saved request was made ruling disputed made; no evidence no was court found as for a no motion to strike was made. ruling and The follows: “I think have shown that there was misconduct on you part juror, showing but there is no that that influenced going verdict. I am to overrule motion a new trial.” The motion was overruled. record, therefore, finding
The
an' affirmative
shows
'that
part
court
there was
All
misconduct 'on the
and,
evidence
appeal,
was received
court
on this
we are
called"
rejection
to rule
in the admission or
errors
of evidence.
enough
say
competent
is
to
that "there was sufficient
evidence in
that,
record to
being heard,
juror,
show
while the case
was
signed
later
foreman,
who
seeking independent
verdict as
was not
case;
evidence on an issue of fact
that he
the"
was
carrying
carpenter’s folding rule;
did,
fact,
that he
measure the fender
aof
1931 Chevrolet and ascertain that
it was
approximately
height
(cid:127)same
aas
1930 Chevrolet. The
further
finding
that
shows
court, although
finding
shown,
that misconduct was
that
found
defendant
not further
had
shown that such misconduct
influenced
the verdict.
finding by
was no
There
the court that
the misconduct
shown did
verdict,
not influence the
nor that defendant was not
prejudiced thereby,
may
unless such
be inferred, under the circum
here,
stances
from the fact that the court overruled the motion.
Respondent
that
contends
did
not believe appellant’s
and,
witnesses
therefore, properly
appellant’s
overruled
claim of
by juror
misconduct
Tudor,
“the court’s finding of no
prejudice from a mere technical violation was a finding of fact whiсh
’’
is
record,
conclusive.
however,' shows that
the court found
misconduct was established, but held there was no
that the
showing
misconduct influenced the
Appellant says
verdict.
the record shows
error of
ruling
law in
motion,
because the court affirmatively found
was
misconduct
and still placed
established
the burden on de-
fendant
that the
to show
misconduct established influenced the ver-
dict
prejudice
and that
Respondent says
resulted.
the burden was
appellant
to
prejudice by
show
misconduct;
that a defеndant,
misconduct
misconduct and
such
ease,
in such
must show
familiar rule
It is a
prejudice.
influenced the verdict to defendant’s
trial
them
prove
a new
do not
allegations
motion for
McKay (Mo.),
v.
supported by proof.
must be
selves and
[Sennert
burden
sustained that
(2d)
appellant
But
105,
56 S. W.
109.]
signed
juror,
who
establishing
trial court’s satisfaction
to the
misconduct, in
foreman,
guilty
of affirmative
the verdict as
that^
at the
the evidence adduced
try
been
the case on
sworn
after
solely
that he must render
verdict
and after he hаd been advised
trial
independent
secure,
evidence,
seeking,
on that
he was out
has been termed
upon which to base
Such conduct
verdict.
352,
Klusmeyer,
363, 256
reprehensible
v.
101 Mo.
conduct.
[Evans
disposition
shown, evidencing a
think the conduct
W.
We
1036, 1039.]
such
governed
court,
be
evidence adduced
defendant,
presumed. A
prejudice
must be
losing party,
Ry.
prima facie ease
made.
Great
Co.,
v.
Northern
[Floody
81, 88,
878;
County,
875,
Kelley
Minn.
112 N. W.
v. Adams
113 Neb.
377,
544,
harmful,
203 N.
presumed
“It
is
error is
W.
545.]
clearly
ex rel.
unless
is
shown to be otherwise.”
Berberich
[State
Haid,
667,
(2d)
669; Amsinger Najim,
v.
333 Mo.
64 S. W.
*8
528,
(2d) 214,
;
v. Arky (Mo.),
335 Mo.
73
216
Aronovitz
(5)
S. W.
624; Conaghan
(Mo.
Despondent
Telephone
cites
case
Steffen v. Southwestern Bell
Co.,
574,
331 Mo.
(2d) 47,
ques-
56 S. W.
52. That
case involved
‘‘
jury.
tion of
misconduct
This
said:
showing
court
There
no is
whatever that
stranger
remarks of the nameless
influenced the
jury.”
verdict of the
competent
But in that case there was no
evi-
misconduct,
dence of
remarks,
or even of the
of the rule
because
against
juror
impeaching his verdict.
cited,
Other cases
involving
jurors,
misconduct of
grouped
bemay
under
following
(1) Where,
heads:
because of the well founded
testimony
rule that the
juror
of a
will not be
the purpose
received
impeaching
jury,
the verdict of a
competent
there was no
evidence
part
of misconduct on
is,
of the jury (that
competent
no
evidence
by reason of
ineompetency
give
of a
such evidence as was
offered).
Louis,
City
v.
of St.
116 City 514, (2d) 976; 960, 322 17 Turnbow v. Lamar,
v. Mo. S. W. Rys. Co., 644, 41, 43; v. City Kansas 277 Mo. 211 S. W. Wilkerson 877, from (3) Sedalia 205 S. W. Where City (Mo. App.), 880.] that there conflicting finding there the trial by evidence was court 525, 542, 157 Nichols, App. Mo. was no Finer v. misconduct. 1023; Heckenlively, Mo. Dysart-Cook Co. Reed S. W. Mule v. & of, 296, (4) there App. 307, 591; 89 S. W. Where was an admission finding of, finding by the trial misconduct of but also alleged court, express no implied, prejudice resulted Valley No. v. misconduct. Consolidated District 3 of Grain School 174, Hoff- Co., 690, (2d) 180; West Missouri 329 Mo. 46 S. Power W. 429, 431; (5) Where, if (Mo. v. 202 W. App.), man Dunham S. misconduct, was any there evidence of there was no evidence that jurors any new, different or evidence and conflicting obtained appeal it held trial its was court not abuse discretion City in overruling motion for a new trial. v. Kansas [Turnbow Co., Ry. supra (211 41, 43); No. S. W. Consolidated School District supra (2d) 3 of Co., (46 Grain v. West S. Valley Missouri Power W. 880); 174, 180); supra Sedalia, (205 877, Wilkerson v. W. City of Hassenbusch, (89 546, 552); Winters v. supra (2d) S. W. Hoffman Dunham, (202 Dysart-Cook supra 429, 431); S. W. Co. v. Mule Heckenlively, supra App. Reed & (114 296, Mo. In some 305).] cases, determining question discretion, ap- these of abuse of pellate court said that it wherein appellant’s was unable to see interest in the could have prejudiced least been conduct of the case Williams, (2d) 732, 735, of State v. Mo. 71 S. W. cited respondent, said: “We hold that facts affirmatively way evidence appellant show that the in no preju- Winningham diced passed through jury fact that room deliberating. while the pre- That overcame sumption of improper stranger influence the fact that a jury room. The State sustained pre- the burden to overcome the sumption improper appellant influence and no was in *9 prejudiced.” way ip
We think the present record the affirmatively ease shows the trial cоurt ruling did not a judicial exercise sound discretion in the motion. In trial, the motion a overruling for new the trial court did not expressly by implication or prejudice preju determine or no dice to defendant proven juror, account of the misconduct the because the upon record shows the court the theory ruled motion the upon burden remained to show the defendant established juror misconduct verdict, though the influenced even misconduct it prejudice was established and was such misconduct that presumed. would be Although had made prima defendant facie case prejdiee, the trial resulted, court did not rule no prejudice but instead ruling based its on the theory that there must also a be have showing the misconduct influenced the verdict. court should question defendant, or expressly prejudice determined question misconduct have as to whether or not should ruled it either so, expressly shown influenced verdict. Since did not do implication, grounds, or but its decision on other by necessary placеd overruling represents it cannot the order the motion be said that judicial exercise it of such a sound discretion that should not be appeal. disturbed on distinguished may case
We think-this be from the cases listed above, nothing under in those eases there was subdivision because court, motions, trial to show in did not exercise ruling judicial expressly by implication a sound discretion and or determine judicially question prejudice no prejudice resulting or addition, jurors shown. in misconduct mentioned those degree purpose cases did exhibit the same interest, intent independent to get measurements on an issue in the case, juror in actively seeking as was exhibited this case. Here the enabling information independent apparently for the him purpose of to arrive at a conduct purpose verdict. His affirmative discloses reject get the evidence the record information outside possession folding carpenter’s rule, record. He visited at lots, least two inquiries, used car made securеd information and height measured'the of a 1931 fender. Prima facie Chevrolet such presumed conduct must preju be influenced the have verdict to was, dice prima facie, preju the defendant. There showing dice. The one, said, case is not of which it can be the trial court judicial discretion, the exercise of a sound determined implication, the misconduct shown did not and that influence the verdict hand, defendant was not prejudiced On misconduct. the other it affirmatively appears from thе record that trial acted court upon misconception cited, therefore, the law. The are not cases controlling here since error of appears law record. on the face of the Under the circumstances shown erred in record overruling motion defendant’s new trial. insisted, however, is that the facts which the trial court ruled fully motion are the-record; set forth in that from an examination we may affirmatively record determine that appears that prejudiced.
dеfendant was not (Mo. App.), Ullom Griffith 876,W. that, although 880. It is seeking insisted evi- record, dence outside the it was anything that he shown found contrary defendant; to the evidence of if he measured Chevrolet, we cannot assume incorrectly got that he measured it a different result from defendant’s measurements, since on evi- height dence of fenders on a 1930 ap- and 1931 Chevrolet same; proximately there was no evidence taken sides controversy or did more than seek and confirm *10 type of misconduct doеs disclose The record evidence. defendant’s es was misconduct found The court it consisted. and of what verdict, support in evidence, also, There was tablished. his verdict. juror did not influence by the made measurements any such measure to the effect jurors were of other The affidavits the evidence only and that into consideration not taken ments were We their deliberations. in in the record was considered com because of value probative think had little these affidavits misconduсt. the effect of jurors to minimize tendency of
mon [State Griffith, v. 909, 914; Ullom 594, (2d) Malone, W. 333 Mo. v. supra 876, (263 S.W. 880).] did the trial court whole record upon the Respondent insists resulted. that no say prejudice that we can not abuse its discretion and appeal can record, this court course, from the facts Of if from the to defendant prejudice resulted affirmatively that no say though it unnecessary, even might be shown, a reversal misconduct judicial dis- exercise sound did not appears that the trial court preju- or no merits, prejudice on its as to cretion or rule the'motion and Williams, Turnbow dice, the error of law. In the because the record had, far as trial court so supra, the cited, Wilkerson cases overruling the motion shows, judicial discretion exercised sound not abuse its trial did for a held that the new trial. appears here since it applicable Those cases are discretion. motion, not, overruling trial determine court did defendant was and that was not influenced the misconduct verdict prejudiced. foreman, Tudor signed by In as $10,000, this case a verdict in the record evidence against only the defendant. returned prejudice prima overcome facie case of influence seen, affidavits, have jurors themselves, as we affidavits which affidavits are nine probative have little value. In addition its case written in the entitled to have same form. Defendant was Co., 345 Mo. jurors (Lee tried Hotel impartial twelve Baltimore a fair trial (2d) 695, 698); 136 S. to have W. produced case, in court. conduct this acts and nоr definitely say, Tudor cannot cast shadow verdict. We over investiga- interest, do we properly say believe could that his own tion, measurements, made, his ver- did not influence admittedly dict. learn jurors The affidavits of the other do not did not say they any juror Tudor, of such “that if measurements as made but state mention . was made ... of measurements . . not mentioned mentioned, any . measurements, evidence . . if such were not taken into consideration.”
We say are active interest unable to the whole record juror Tudor, and evident search for independent attitude of and his acquisition record, facts not influence outside of *11 prejudiced verdict or defendant was not by the misconduct (Ore. of this Schneider v. Moe Sup.), (2d) 577, 50 Pac. [See, pass upon assignments is other unnecessary of error. 578.] The judgment is reversed and the cause Hyde remanded. and Brad- ley, CC., concur.
PER foregoing CURIAM: The opinion Dalton, C., is adopted opinion as the judges court. All concur. Hopkins
State of Missouri Edie, Relator, relation of S. C. Ewing Shain, B. C. Bland, and Nick Cave, Judges T. City Kansas Court Appeals. W. (2d) 174. One, 18, April
Division 1941.
Rehearing Denied, June 1941.