*1 577. Co., (2d) 344. Ry. 332 Mo. 61 S. W. v. St. L.-San Fran. [Cole City, 41 W. App. 408, S. See also Callahan Kansas Plaintiff, fifty-six years old, capsular an intra frac suffered right femur, a hip. neck of the broken Union of the ture of metal Pie in the pins. broken was obtained bones úse hospital weeks, ten at in bed for weeks. Thereafter he home seven right leg perma was in a wheel chair and then used crutches. The is nently right shortened inch and is some eversion of the foot. He will use crutches have to continue to the remainder of his A pain permanent. residual will be There life. is uncontroverted testimony disability. circumstances, judg of total Under these $10,000 ment of is not excessive. judgment All concur. is affirmed. an Infant His Mother and Natural Reich, Reich,
Robert Anna Guy Guardian, A. Thompson, Trustee for the Missouri Pa- Company, Corporation, Appellant. cific Railroad W. S. (2d) 486. One, July 23,
Division 1940. *2 appellant.
Thomas J. Cole for Laughren respondent.
Leo F. *3 damages personal for $25,000 for DALTON, is action C. This by one of defend- struck was by plaintiff when
injuries sustained court, for and The found defendant ant’s locomotives. appealed has trial. Defendant a new motion, granted plaintiff from order. of miscon- granted a trial was because shows that record illegal of one part behavior on the improper and duct and qualified juror was not in that the Georgopoulos,
jurors, Nicholas such; examination although he voir dire qualified on any member he, if plaintiff juror by counsel for was asked sued or relatives ever his or intimate friends family bodily injuries sus- damages as result party to a for was suit “ ” when, fact, answered, No, juror truth and ; tained that said by Lasetta Thuneman on June had been one said sued by damages injuries her she $10,000 for sustained when said operated juror; and said struck an automobile owned city Missouri; that Louis, of St. suit was the circuit against the prejudiced biased and reason thereof said defendant, plaintiff’s and favor of and cause of action give and did not knew; could not as said well that said impartial hearing trial; he asserted plaintiff a fair and during expressed bias the same other prejudice on case; their deliberations of the said bias and until part not known and his counsel the al- after of the verdict. court’s order followed rendition legations assignment No. for a new the motion trial. *4 verified,
The for a no affidavits were motion was and it, support filed of the heard in support with or but allegations of the motion. No record had been made of the the jurors, questions on the voir dire examination of the but and answers attorneys, plaintiff’s pros- the one who conducted examination of jurors, jury that on name of pective testified the list the Nicholas juror gave that his Georgopoulos; business, this residence and and years old; said was married and a child five he he had that was then family any any asked if or member his or of his close he friends or kind, is, ever sued in a case of this that associates had damages one for injury person’s body; for to a juror inflicted that the an- swered, “No;” he was asked if he that then had ever had ex- in his life that would cause him to a perience in a juror answered, of this kind and that “No.” lawsuit the wit- attorney) by (plaintiff’s ness refreshed his recollection reference list, by him at jury a and notes made the trial of the case. fur- He examining ther the he about stated that asked suits where falling automobile, car, injured by a "struck or street persons were way.” any other down he saw Nicholas testified that deputy circuit court
A clerk the dire voir jury at the time the panel on Georgopoulos present the reading for several newspaper a juror was examination; the that juror to examination; told the that he during the voir dire minutes juror when the he to this newspaper; down that talked put the and and later came back top on rack out and left coat the went it that from conversations got put locker; it in the clerk’s and these jury juror’s voice; while recognized that with he by witnesses, near (witness) upstairs to room used was out went a he downstairs, came jury upstairs, that as went and as he room; he coming jury and heard voices heard a commotion in room he jury appellant’s objection permitted room. he was from the Over got landing sheriff was there up deputy to state that he to the when great com- gone that was a (having there on account of the fact jury room) (witness) motion in the and that he heard someone jury say voice, "Well, I talked this over room loud case a my night”; with last that voice in the wife later heard this he say, "Well, they on you put room would that some iodine how like your boy’s shyster lawyer got him; foot and a he ahold of sued $10,000 got judgment against man for had a him and the man to sell recognized out his business.” The witness said that he voice as that Georgopoulos. hearing
In on the motion it counsel for de- was admitted fendant city that the records of the circuit court of of St. Louis showed that on about had June been sued one $10,000 Lasetta 'Thuneman personal injuries; for for that January 16, 1935, a stipulation judgment filed entered said cause consent in against favor of the the defend- ant for costs, stayed $100 and 60 days; with execution for that on May 17, 1927, one Spinelli Apos- Bruno had instituted a suit tólos Georgopoulos, the father of said $7500 said later plaintiff’s cause was dismissed at cost.
There was after evidence that went out to deliberate on that plaintiff’s attorney the case was seated in the room and very he heard jury room; loud noise and a commotion in the though noise sounded as he quarreling; someone was heard the voice of one juror talking who was but could hear no one else; that speaking in a loud voice; that he saw deputy sheriff leave say, the court room and heard him "It sounds fight like me.” attorney testified, however, *5 no information as to what went jury on in the room until after the verdict was rendered. deputy The produced sheriff was not as a witness.
In rebuttal defendant called Georgopoulos. Nicholas He testified trial; he that living he at time of the was not with his wife
that from separated during trial; did had been not see her that he it that had her; member of he jury any that he did not tell anything to say not wife; talked the case over with his that he did his somebody iodine on boy put about a who had sued dire foot; any statement; that on voir that he did not make such never attorney him, has plaintiff’s examination asked “There had your any against you member suit filed immediate your judgment family and even if had been it would not affect attorney “No;” in this case would it?” that that answered he asked, favor to give judgment then “You without impartial could could;” “Yes, I you; answered, one side or the other couldn’t that he father; that entirely forgotten against that he his had about the suit hap- he nothing had to know what suit; do with the that he didn’t pened except it that it insurance was handled and settled t.0 him; company; against nothing that he had with the suit filed do attorney that it; judgment in favor handled that was rendered plaintiff judgment consent; paid $100 that had he not agreed but pay it; rendered judgment that at the was time the he was working disquali- -not income; and had no have that he would fied himself if have unqualified juror; he had felt as that he could gone work; back to and that he On had no in mind whatever. malice attorney’s cross-examination present he admitted that he was in his office when the suit him shown adjusted, and it further participated that he in the settlement.
The court length: cross-examined the at testified that years was 30 age, that he was married and had child; graduate High years Roosevelt School and had had three work Washington at University, is, years that pre-legal two work year one law. “You mean tell this Court Q. Court: you that paid any- that paid $100 or it hasn’t been your one else on right, your behalf? A. And That’s Honor. Q. you had that you situation in mind when came as into division eighteen one of the men? No, your Honor, .... A. I didn’t. Q. Didn’t sit there your as a thought mind, venireman with the with the knowledge your you yourself a de- mind had been fendant a law suit? A. I did know that I been a defend- ant, yes, sir. you That recognized right had in that law suit Q. agreed you him pay with him $100? would A. true, your That’s Honor, though but I still felt as I prejudiced. Q. you knowledge you And had the as here in this sat division and this you box that paid had not A. $100? Yes, I your knew that, Honor, I say but still it me. didn’t . . Q. . You are equally' positive question you by asked counsel for voir dire phrased examination was exactly you stated very my it? A. To the best of recollection *6 Q. my in this case.’ That was judgment was, it 'Would it affect Honor,. recall, your I the ? A. As question, the was it not second Q. If together in one. that had question questions put was two any part lawyer that so unusual on of it have been the occurred would that, you a certainly Is it fact as sat I noticed it. not would have eighteen you questions put that heard men, one of the as experiences in matter respect for to their the plaintiff counsel damages? for being instituting of sued or causes of action themselves questions. Q. A. I him ask ... You heard that heard those this'panel? A. I question propounded every to man that was every suppose Q. your so. tell each Is it idea to this Court question time counsel for did it plaintiff propounded that he you you? No, sir, I identical fashion that claim he asked A. do say Q. you not that. counsel for ask How else did hear juror question? this A. I heard him ask whether or not a family any been or a or his sued—whether not immediate or his, any represented. of I phrase- relative or firm that he heard that you figured ology used. . . . The that virtue Court: And years year’s study you of the fact that pre-legal had two and one of you charge law predestined jury that sort of take of were to.
direct their The Honor, consideration?” Witness: "Your that is I suggested not so. that be made foreman. I not someone else did ’’ position seek foreman. The trial court, objection over that defendant’s could not impeach verdict, be to permitted».plaintiff’s used counsel to cross- length transpired examine jury at as to what room and about "shyster damage lawyers.” the use the words suit The inquired why building also up "discussed cases shyster lawyers.” admitted the in the words were used jury might but said he them; room didn’t think he used that have used suggested them since someone verdict be- cause sympathy, but the Words not were used connection with particular case.
The court in permitting the cross-examination of the stated that knowing the court was interested in transpired what in the room; that if anything irregular there was in the manner in which ,the jury duty did allegedly duty knowledge their their did that fact of paramount interest; any- that the court should know thing touching upon might irregular that which insofar as conduct in arriving concerned at verdict the case; that the court in determining was interested "whether anything irregular of an jury room;” occurred in' nature that that "in investigation kind, this goes beyond over and rule. . . . that supersedes all of rules;” the technical and that anything if irregular happen did permitted the court should be hear it. : you record further shows: "The Court: Would
58,4
ir-
there which
happen
something did
if
position
take
cannot
it,
this
Court
hear
permitted
are
regular
we
go
judgment,
verdict
a secret
remain
shall
inquire,
’
understanding
my
telling you
I am
. Mr. Cole :
go
it is ?
.
.
they
thing,
very
prevent
jurors,
in order to
rule —-that
*7
in
ease
discuss
room and
right
to that
to retire
have
on,
snooped
without
being
overheard,
being
without
private, without
being
room,
without
they get out of the
talking
it after
about
already
I have
.
.
.
from their business.
brought
Ti-ie
Court:
in this
conduct
far as our
rule;
so
I feel about
suggested what
the rule.”
hearing is
that will be
concerned
his coun-
testimony
plaintiff or
allegation and no
was no
There
and
juror,
of
suits
of the existence
sel did not know
There was
dire
father,
the voir
examination.
juror’s
the time of
at
part
allegation
prejudice on
that bias and
the ver-
rendition of
until after the
or his counsel
known
allegation.
of this
support
substantial evidence
dict
there was
sustaining re
assigned
the action
Error
is
of the
when a
spondent’s
Appellant contends that
motion for a new trial.
disqualification of a
alleges
or
motion for a
trial
misconduct
new
by
must
and client
the motion
verified
both counsel
be
of the
affirmatively
client knew
show that neither counsel nor
must
Such a
alleged
disqualification prior
verdict.
misconduct
in criminal cases un
applied
rule has been
to motions for a new trial
3272).
3734,
(4
der
R.
Mo.
Ann.
“When
defendant
Sec.
S. 1929
Stat.
ground
for a
trial
of a
which
moves
new
on the
misconduct
affirmatively
during
trial,
that both he
occurred
he
show
must
ignorant
and his counsel
until after
trial.
were
the misconduct
indicating
explicit,
affidavit must
full and
has
be
whether
personal knowledge
facts,
information,
of the
the sources of
witnesses,
the reasons for his
failure to secure
affidavits
other
any.”
if
(Mo.),
506,
(citing
v. Flinn
513
(2d)
96 S. W.
[State
objection
“The rule is that such
eases).]
sup
to a
be
must
ported
nothing
well
client;
affidavit
counsel as of
less
127,
than this
Howard,
136,
suffices.”
v.
118
24
Mo.
S. W.
[State
41;
Trainer,
State v.
620,
131, 135;
336 Mo.
80 W. (2d)
S.
State v.
Hunt, 141
626, 637,
389;
Mathews,
Mo.
43 S. W.
v.
202
State
Mo.
143; 149,
Ferris,
585 wherein, 495, 119 S. W. App. Mo. Baptist Church, Park said: aof on misconduct referring to a motion based the court been effective, should have sworn motion, to been “The who corporation the officer of the both counsel and defendant’s as to the one made of no charge case. There is the affidavit of the fatally de motion, motion is allegations truth in the and the of the knowledge stating prejudice of the in not fective cause was attorneys before the did not to the its come defendant and ’’ one of In evidence that jury. submitted to the that case there was until juror’s was not attorneys defendant’s aware was set granting after a new trial to defendant the verdict. An order has been cited appeal. aside on that this case ever We do find is, nor civil case. It do find that this court so ruled we has a new trial however, allegations familiar of a motion for rule with them prove reference to of the record do not matters outside McKay (Mo.), selves must supported proof. be [Sennert S. W. its It has held that the trial court may permit filing discretion hear of affidavits oral *8 support allegations of trial that in a motion for a new to the effect a may prejudiced was biased be and that such affidavits and filed subsequent filing to a [Gibney the motion for new trial. v. St. Co., Louis Transit 204 Van 43; Mo. 103 S. W. Loon v. St. Joseph Railway, Lt., 195 Co., 209, Heat & Power 271 Mo. S. W. 737, 738; Harding Fidelity Casualty v. (Mo. App.), & 27 S. W. Co. (2d) 778, 779; (Mo. 43, 46; Reissman v. W. App.), 258 Wells S. Houts’ Pleading Missouri Practice, 2, It pp. vol. has 150-151.] also been held perjury a motion that for a new trial account or of a Johnson, mistake witness need not 129 verified. [Ridge be Mo. App. 541, 546, 1103; 107 S. W. & Thompson Nugent v. B. Bro. Dry (Mo. App.), By Goods Co. (2d) 596, express 17 W. S. 597.] statute a granted new trial may upon “good be cause shown.” [Sec. 974, R. 1929 (2 S. statutory Mo. Stat. Ann. And there is no 1247).] requirement that a motion for trial 1001, a new shall be verified. [Secs. 1002, R. 1929 (2 S. 1262, Mo. Stat. Ann. is our It con 1264).] clusion that power and discretion of the trial hear evi court to in support dence allegations of the of a motion a trial for new with alleged reference to disqualification misconduct or of a or to grant a trial new on the testimony, long basis of such as it so exer cises a judicial sound way discretion, in no limited mere fact that the motion a for new trial was plaintiff not verified or his counsel. Nor was the limited the exercise of its discretion grant to a new trial allegation mere fact that there was no or proof plaintiff or his counsel did not know the existence of suits father, and his since there both al legation proof existed; that neither nor his counsel knew of the prejudice; and that did not Roofing v. South Co. Western trial. The case impartial
a fair and contrary, is may to supra, as it hold Church, insofar Baptist Park hereby overruled. preju-. might establish matters which it is shown “Where voir actually gone on the into disqualification or a were
dice work practiced deception otherwise dire, given, were and false answers for a on motion question consider the permitted court will be made objection The fact new trial.” Fidelity & controlling. exception saved is [Harding 458, 136 Co., 345 Mo. Casualty Hotel Co., supra; Lee v. Baltimore City Co. Service 695, Kansas Public (2d) 697; W. Massman v. S. (Mo.), 833, 119 W. S. granting or not trial court question here is whether of a exercise assigned did so in the the new for reasons trial its. dis judicial or not the exercise sound discretion and whether upon com upon cretion a foundation fact rests reasonable knowledge of the trial petent in the record or within W. (2d) upon Naylor (Mo.), v. Smith S. Appellant court. relies Subway Co., City Electrical Wire 603; v. Kansas and Clack In there was App. 205, 210, 119 1014. these cases S. W. have the showing plaintiffs plaintiffs’ no counsel did not particular juror’s alleged disqualification information about the mo prior verdict, cases the court overruled but these assignment tion for motion was a new trial or at least that appeal it that an court’s dis overruled. On was held abuse cretion In motion It was not shown. this case the was sustained. pointed has been out that a a motion different rule obtains where examining upon new has “In trial been sustained. the law subject, language care should be taken not to confuse the of courts in approving refusing the action of a trial new trial with language applicable granted.” to cases where has been *9 Kelly, App. 572, 576; Wells, v. 51 Mo. 300 Devine v. Mo. [Longdon 177, 187, 65; Douglas, 258, 254 W. S. Sofian v. 324 Mo. 23 S. W. (2d) 126, Appellate 129 courts also in up are more liberal (3).] holding sustaining- the trial court’s action a motion for denying Boyd trial than in (Mo. it. v. 138 App.), Co. S. [Aeolian (2d) 693, W. Here was evidence from which the court 695.] particular could find that juror the had concealed material facts and there was evidence from court which the could infer the juror prejudiced. was biased and trial court was not bound testimony the of the prejudiced. he was biased and Durand, v. 870, 990; 345 Mo. 136 W. 988, S. Gibney [Bass Co., supra 719, v. (204 Transit 103 Mo. l. c. S. W. In view 43).] sustaining action of the motion must the we conclude that the that prejudice court found resulted to from this
587 fair jury juror’s presence upon did the impartial trial. impar hearing a fair and Plaintiff to a before was entitled requested jury. attorney entitled to information tial His the family to members of with reference whether damages personal injuries. plaintiff’s If had ever been sued for attorney dire, and the questions was correct as asked voir to intentionally the fact was, indicated concealed him father. The court suits and his saw explanation answers, heard his for his as well as his reasons prejudicial other competent upon matters in evidence. The effect plaintiff’s juror’s presence upon jury, case this what it, judicial was to be about was the sound discretion of done within opinion court. We are of the that this discretion was not Co., Martel, abused. v. 332 supra; Baltimore Hotel Beers v. [Lee 53, 55 (2d) 482, 484; App.), Mo. S. W. Hoffman Dunham (Mo. v. 202 429, S. 431 (7); (Mo. App.), W. Paul v. Dunham 214 W. S.
263, 266.]
Appellant further insists that entitled to were privacy in their deliberations; permitting the court erred in deputy testify circuit clerk to as to what he heard while out jury side of room; cónsidered; may not be without this evidence the motion could not be sustained. that% No support authorities are argument. cited of this rule this State is that a impeach' will not be heard to verdict, alleged whether the misconduct occurred inside or out jury side of the room. v. Telephone Co., Southwestern Bell [Steffen 574, 331 Mo. 56 (2d) 47, (citing S. W. 51 cases); Evans Klus v. mayer, 352, 301 Mo. 256 1036; Thompson S. W. City Lamar, v. 322 514, Mo. 17 (2d) 960, S. W. 976; Bank Stokes, Malden 220 Mo. App. 131, 280 1055, S. W. But do not we find that the rule has been further extended to exclude outsiders happen who overhear the jury. deliberations of the In the case of Hoffman v. Dunham, supra (202 429, 431), W. of an affidavit outsider S. juryman as to awhat said to him while was excused for the night was incompetent. held to be applies The same rule to state by jurors ments discharge. after their Such statements have also hearsay. been excluded as v. Mo. Pacific Co., Railroad 113 [Easley Mo. 20 1073; W. Herring S. Ry. Co., v. Wabash App. 562, 569; Miller, Proffer v. 69 App. 501; Mo. Bank of Malden Stokes, In the ease of Malone, State v. supra.] Mo. S. W. (2d) 909, 912, a motion for a new trial was containing filed allegations with reference to conversations heard in room, and with reference to fact, disclosures of not of record, one juror. the other *10 The trial court the testimony heard of outside witnesses who overheard these conversations and disclosures. On
588 questioned, but was not evidence of this appeal, competency the conviction set aside defendant’s evidence this court basis of this the Coleman, v. also: State trial. case for and remanded the [See .new record in is no evidence the 435, 440, 175 S. W. There 209.] securing infor- in deputy clerk improper conduct of It was competent. aliunde We hold that mation. its discretion abuse The trial court did not themselves. Lamar, supra; City of receiving [Thompson the evidence. 30, W. 109 S. Assn., Mo. Green v. Terminal Railroad nor the court neither final is that Appellant’s contention searching inquiry of the right to make counsel had the granting room, and the order transpired to what did make The court should, therefore, be set aside. new trial little of the examination examination but extensive made The court jury room. happenings directed to inside the make some examination, counsel permitted plaintiff’s some jury room. happening examination of as to matters hold, opinion, and so However, This of the improper. we are counsel improper examination of destroy the reasonable exercise power did not of the court within assigned. grant of its a new trial for reasons discretion [Reiss In Wells, Stokes, view supra; man v. Bank of Malden supra.] upon which record fact that there is substantial evidence must ruling granting a new trial base its the order Hyde Bradley, CC., be affirmed. It so concur. is ordered. C., adopted is foregoing opinion by Dalton, PER CURIAM: The judges as the All opinion the court. concur.
George Company J. Fuhler Levine v. Gohman & Construction Royal Neighbors al., Defendants, Appellant. et America, S. W. 482. One, July 23,
Division 1940.