Summary
In Murphy v. Cole, 338 Mo. 13, 19, 88 S.W.2d 1023, 1024, 103 A.L.R. 505, we said: "If for any reason, whether statutory or not, a prospective juror is not in a position to enter the jury box with an open mind, free from bias or prejudice in favor of or against either party to the cause, and decide the case upon the evidence adduced and the law as contained in the court's instructions, he is not a competent juror.
Summary of this case from Tate v. GiuntaOpinion
December 18, 1935.
1. JURORS: Statutory Qualifications: Agent of Interested Party. Section 8771, Revised Statutes 1929, enumerating certain disqualifications for jury service does not exclude other grounds of incompetency.
If for any reason, whether statutory or not, a prospective juror is not in position to enter the jury box with an open mind, free from bias for or against either party and to decide the case according to the evidence adduced and the law contained in the court's instruction, he is not a competent juror.
In an action for personal injuries the local agent of a liability insurance company in which the defendant carried a policy and which agreed with defendant to furnish counsel for defense, was incompetent to serve on the jury.
His relation to the insurance company was a ground to challenge him for cause.
2. WITNESSES: Speed. In an action for injuries caused by the collision of a Chevrolet car with a truck, where a witness who had driven a Chevrolet car and had been in contact with such cars for years, working in the Chevrolet assembly plant, testified that from his experience with Chevrolet cars he was able to judge their speed by the sound of the motor, his testimony as to the speed of the colliding Chevrolet was not, as a matter of law, incompetent.
3. APPEAL AND ERROR: Point Not Preserved. An alleged error not preserved in a motion for a new trial will not be considered on review for an appeal.
Appeal from Cole Circuit Court. — Hon. Nike G. Sevier, Judge.
REVERSED AND REMANDED.
Walter Burch for appellant.
(1) In a civil suit, each party is entitled to exercise the right of peremptory challenge against three men out of a panel of eighteen competent and qualified jurors, and a denial of that right is reversible error. Carroll v. United Rys. Co., 157 Mo. App. 264, 137 S.W. 303; Theobald v. Transit Co., 191 Mo. 419. (2) Although appellate courts show great deference to the judgment of the trial court in the exercise of its discretionary powers, nevertheless, orders denying a new trial are reviewed more strictly against the trial court than orders granting them, and will be set aside on appeal where it plainly appears that the trial court has abused its discretion by an unsound or arbitrary exercise thereof. Miles v. Haney, 190 Mo. App. 224; Parker v. Britton, 133 Mo. App. 270, 113 S.W. 259; Hopkins v. Springfield, 164 Mo. App. 686, 147 S.W. 1099; Allen v. Railroad Co., 167 Mo. App. 506, 151 S.W. 762; Settles v. McGinley, 222 Mo. App. 250, 296 S.W. 848. (3) The right to challenge a juror for cause is an essential incident of a fair and impartial trial, and may be exercised without limit as to number. The court has no discretionary power to permit an incompetent or disqualified person to serve as juror, if properly challenged. Doubts as to qualification should be construed against the juror, and the ruling of the court thereon is a question of law, reviewable upon appeal. 35 C.J., p. 404, sec. 458, p. 382, sec. 426; Theobald v. Transit Co., 191 Mo. 418; Coppersmith v. Railroad Co., 51 Mo. App. 357; Carroll v. United Rys. Co., 157 Mo. App. 264. (4) Pecuniary interest in the litigation is ground for challenge for cause, and it makes no difference whether such interest is real or imaginary. 35 C.J., p. 313, sec. 324D; Vessels v. K.C. Light Co., 219 S.W. 80. (5) One who is in the employ of a party to litigation is incompetent to serve as juror therein; and such disqualification extends to employees of parties not of record, but having a pecuniary interest in the suit; it includes employees of insurance companies interested in the litigation, and in Missouri has been held to disqualify an ex-employee. 35 C.J., p. 313, sec. 324, p. 322, sec. 338, p. 394, sec. 439; Johnson v. K.C. Elec. Light Co., 232 S.W. 1094; Quirk v. Met. St. Ry. Co., 200 Mo. App. 585; Richey v. Railroad Co., 7 Mo. App. 581; Oakley v. Richards, 275 Mo. 266, 204 S.W. 505; Wagner v. Gilsonite Constr. Co., 220 S.W. 890; Kinney v. Met. St. Ry. Co., 261 Mo. 97, 169 S.W. 23; Muehlebach v. Muehlebach Brewing Co., 242 S.W. 174; Wallnitz v. Werner, 241 S.W. 668; Laurent v. Hoxmeier, 227 S.W. 135; Meyer v. Gundlach-Nelson Mfg. Co., 67 Mo. App. 392. (6) Inquiry concerning the relationship of prospective jurors to insurance companies is proper, not only for the purpose of laying the foundation for exercising peremptory challenges, but also to lay the foundation for challenges for cause where relationship is established to a company interested in the litigation. Meyer v. Gundlach-Nelson Mfg. Co., 67 Mo. App. 392. (7) Statutory enumeration of grounds for challenge does not preclude a challenge for cause upon other grounds. State v. Miller, 156 Mo. 76; State v. West, 69 Mo. 401; Coppersmith v. Railroad Co., 51 Mo. App. 357. (8) The duty of the court to set aside a verdict that is grossly inadequate, or substantially less than the proved damages, is the same as its duty to set aside an excessive verdict. 46 C.J., p. 182, sec. 137; Craton v. Huntzinger, 187 S.W. 53; McCarthy v. St. Louis, 192 Mo. 403; Fischer v. St. Louis, 189 Mo. 579; Chouquette v. Railroad Co., 152 Mo. 266; Lee v. Publisher, etc., 137 Mo. 393; Busse v. White, 302 Mo. 672, 259 S.W. 458; Platt v. Cape G. Bell Tel. Co., 12 S.W.2d 933; Roman v. Boston Trading Co., 87 Mo. App. 186; Laclede Power Co. v. Nash Tea Co., 95 Mo. App. 412. (9) Under the statute and adjudicated cases it was the plain duty of the court to set aside the verdict, because of false testimony offered by witnesses for defendant, relative to the alleged widening of the dirt shoulder along the edge of the pavement, at the scene of the collision, which tended to excuse defendant's driver from blame, and biased the jury in defendant's favor. R.S. 1929, sec. 1002; Scott v. Ry. Co., 168 Mo. App. 530; Ridge v. Johnson, 129 Mo. App. 546; Rickroad v. Martin, 43 Mo. App. 604; Dean v. Johnson, 229 Mo. 452. (10) The testimony of a skilled witness, or expert, must be based on special knowledge, derived from education, observation or experience, and the facts upon which the opinion is based must be first stated. Such facts must be consistent with known scientific truths, and must be detailed in the evidence as the foundation of the qualifications of the witness. Measured by this rule, the testimony or opinion of witness Copeland that the Murphy car was traveling fifty to fifty-five miles per hour, founded upon his alleged knowledge of the hums of motors, was incompetent. Campbell v. Railroad Co., 175 Mo. 161; McAnany v. Henrici, 238 Mo. 103; Witte Iron Works v. Holmes, 62 Mo. App. 372; Benjamin v. Met. St. Ry. Co., 50 Mo. App. 602; Farmer v. Railroad Co., 178 Mo. App. 579. (11) The measure of damages in cases of this character is full compensation for the pecuniary loss suffered by plaintiff as the result of the death of her husband, including loss of support for herself and minor children, and such other liabilities for the care and maintenance of herself and minor children as were cast upon her by his death. Under this rule it was competent for plaintiff to prove the reasonable and necessary cost of medical and surgical treatment of one of her minor children for a condition existing at the time of her husband's death. The statute authorizes the recovery of any damages which may be estimated according to a pecuniary standard, whether present, prospective or proximate. Hickman v. Union E.L. P. Co., 226 S.W. 575; Morton v. Lloyd Const. Co., 280 Mo. 360; Barth v. Ry. Co., 142 Mo. 535; Seeder v. Railroad Co., 100 Mo. 673.
Anderson, Gilbert Wolfort, Ragland, Otto Potter and June R. Rose for respondent.
(1) The trial court committed no error in refusing to sustain plaintiff's challenge for cause to juryman W.H. Steininger because the fact that he was an agent for the St. Paul Mercury Indemnity Company does not constitute a challenge for cause, but such inquiry is permitted under the law to enable a plaintiff in such case to elicit information to enable him to determine upon his peremptory challenges. Such connection does not constitute a challenge for cause. Rytersky v. O'Brine, 70 S.W.2d 540; Maurizi v. Western Coal Mining Co., 11 S.W.2d 274; Olian v. Olian, 59 S.W.2d 674; Ulmer v. Farnham, 28 S.W.2d 115; Wendel v. City Ice Co. of K.C., 22 S.W.2d 217; Raines v. Wilson, 239 N.W. 37; Mortrude v. Martin, 172 N.W. 22. (a) And the record fails to show that the insurance company was any longer interested in the case. (2) The appellant is in no position to be heard to complain that the jury awarded a less sum by way of damages than the amount to which appellant considers herself entitled, for the reason that the court gave, at the instance of appellant, an instruction instructing the jury that it should allow as damages such sum as to the jury seemed fair and just with reference to the pecuniary injury or loss, if any, resulting from the death of appellant's husband, also having regard to any mitigating or aggravating circumstances attending the act which caused his death, etc. (a) Appellant should not be heard to complain that the jury followed the instruction requested by the appellant and given by the court on the measure of damages. Meffert v. Lawson, 315 Mo. 1099; Schofield v. Harrison Land Mining Co., 187 S.W. 63; Kinlen v. Railroad Co., 216 Mo. 166; Lange v. Railroad Co., 208 Mo. 475; Mirrieless v. Ry. Co., 163 Mo. 486; Christian v. Ins. Co., 143 Mo. 468; Olfermann v. Ry. Co., 125 Mo. 415; Baker v. Ry. Co., 122 Mo. 599; Herndon v. Robertson Construction Co., 227 Mo. App. 698; Potter v. Metropolitan Street Ry. Co., 142 Mo. App. 226; Guntley v. Staed, 77 Mo. App. 163. (b) Appellant having requested and the court having given an instruction that mitigating circumstances should be considered by the jury, the finding of the jury, which was sustained by the trial court, will not be disturbed on appeal. McCarty v. St. Louis Transit Co., 192 Mo. 401. (3) The ruling of the trial court on appellant's motion for a new trial on the alleged inadequacy of the verdict should not be set aside by the appellate court because: (a) The ruling of a trial court on the subject of the adequacy of a verdict is a ruling on the weight of the evidence. St. Louis v. Franklin, 324 Mo. 1214; Sofian v. Douglas, 324 Mo. 264; Hunt v. Gillerman Iron Metal Co., 327 Mo. 889; Bowers v. Pub. Serv. Co., 328 Mo. 778; Stegner v. Railroad Co., 333 Mo. 1194. (b) Trial courts may pass upon the weight of the evidence. Appellate courts may not pass upon the weight of the evidence and will sustain the ruling of the trial court if there is any substantial evidence or good reason upon which the trial court could have based its ruling. St. Louis v. Franklin, 324 Mo. 1214; Bowers v. Pub. Serv. Co., 328 Mo. 778; Sofian v. Douglas, 324 Mo. 264; Cochran v. Wilson, 287 Mo. 230. (c) The trial court correctly ruled on the motion for a new trial on this point and its ruling should be sustained because: On the whole record the case preponderates in favor of the defendant and where the evidence preponderates in favor of a defendant or is evenly balanced the appellate court will not interfere with the trial court's ruling though the verdict be nominal. Cochran v. Wilson, 287 Mo. 229; Sullivan v. Wilson, 283 S.W. 745. The appellate court will not disturb the verdict inasmuch as appellant's case is not such that if the finding had been for the defendant appellant would have been entitled to have had it set aside. Cochran v. Wilson, 287 Mo. 230. The jury could have logically found that the damage sustained by plaintiff was not due to defendant's negligence and the court should consider the verdict for nominal damages as in effect a verdict for the defendant. Haven v. Ry. Co., 155 Mo. 232; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 77 L.Ed. 445. The verdict was actually a finding for defendant. The plaintiff was relieved of the expense of the trial and costs. The plaintiff is in no position to complain, for the jury intended for the verdict to be for defendant with the above exception, and the trial court by overruling the motion for new trial so found. The jury followed the instruction given by the court at the instance and request of appellant. Point 2.
Action by appellant, plaintiff below, to recover damages for the death of her husband caused by a collision between a Chevrolet roadster in which he was riding as a guest, and an International truck owned and operated by respondent, J.E. Cole. Verdict and judgment for plaintiff for $500, and plaintiff appealed.
The collision occurred on Manchester Road in St. Louis County. This road runs east and west and is paved with a concrete slab eighteen feet in width, with dirt shoulders on either side. At the time of the collision defendant's truck was headed west and standing at rest with its right wheels on the dirt shoulder and its left wheels on the concrete slab. The Chevrolet roadster in which plaintiff's husband was riding as a guest approached from the east and collided with defendant's standing truck. A detailed statement as to the cause of the collision and who was responsible therefor is not necessary to a determination of the questions raised on this appeal.
It appears from the record that defendant carried liability insurance in the St. Paul Mercury Indemnity Company. It also appears that after the collision which resulted in the death of plaintiff's husband, said indemnity company agreed with defendant to make an investigation as to his liability to plaintiff, and furnish counsel to defend this case, reserving the right to contest its liability to defendant under the policy.
This cause was instituted and tried in the Circuit Court of Cole County.
The first error assigned is the action of the trial court in overruling the challenge for cause of juror W.H. Steininger.
In the course of impaneling the jury, it was developed upon the voir dire that juryman Steininger was local agent of the St. Paul Mercury Indemnity Company. Steininger did not write the policy in question. He testified that he had never heard of the case before, did not know the plaintiff, had not talked with the attorneys in the case, and had no prejudice in the case one way or the other. Plaintiff challenged this juror for cause and the challenge was overruled.
Section 8771, Revised Statutes 1929, enumerates certain grounds of disqualification. That section reads as follows:
"No witness or person summoned as a witness in any civil cause, and no person who has formed or expressed an opinion concerning the matter, or any material fact in controversy in any such cause, which may influence the judgment of such person, or who is of kin to either party to any such cause within the fourth degree of consanguinity or affinity, shall be sworn as a juror in the same cause."
It will be noted that above statute does not provide that an agent of one of the parties to a cause may not be sworn as a juror in such cause. Neither does it make such agency a ground of challenge for cause, but this statute is not all-inclusive and does not include the whole subject of the qualifications of jurors. We have so held. In State v. Miller, 156 Mo. 76, 84, 56 S.W. 907, we said:
"The fact that the statute enumerates certain grounds of disqualification does not exclude other grounds of incompetency. This has been consistently so ruled by this court since Chouteau v. Pierre, 9 Mo. 3. [State v. West, 69 Mo. 401; State v. Leabo, 89 Mo. 247; State v. Young, 119 Mo. 495.]"
In State v. West, 69 Mo. 401, l.c. 403, this court said, "A juror should be in a condition of mind to do exact justice between the State and the accused, . . . and if a juror, on his examination on the voir dire, should admit that he bore malice toward the accused, and would be reluctant to acquit him, even though he should not be proven guilty by the State, he should be rejected by the court as an incompetent juror, notwithstanding the statute does not declare the existence of such malice, on the part of the juror, toward the prisoner, a disqualification." Our judgment is that State v. West, supra, correctly states the rule which should govern the selection of juries. If for any reason, whether statutory or not, a prospective juror is not in a position to enter the jury box with an open mind, free from bias or prejudice in favor of or against either party to the cause, and decide the case upon the evidence adduced and the law as contained in the court's instructions, he is not a competent juror. In the light of this rule, did the fact that juror Steininger, was local agent for the insurance company in question, render him incompetent as juror in this cause? We think it did. Both parties to a lawsuit are entitled to a panel of eighteen qualified men from which to select a jury. [Pietzuk v. Kansas City Railways Co., 289 Mo. 135, 232 S.W. 987, 992; State v. Naylor, 328 Mo. 325, 40 S.W.2d 1079, 1083; Theobald v. Transit Company, 191 Mo. 395, 419, 90 S.W. 354; Carroll v. United Railways Company, 157 Mo. App. 247, 264, 137 S.W. 303.] A juror in the employ of one of the parties to a cause might honestly believe he had no bias or prejudice one way or the other, yet, it is a matter of common knowledge that the frailties of human nature would cause him, perhaps unconsciously, to view the cause through the spectacles of his employer.
In Crawford v. United States, 212 U.S. 183, one in the employ of the United States Government was called as a prospective juror. Because of such employment this juror was challenged, and the challenge was overruled. On appeal, such action was held to be error. In so holding the court, among other things, said:
"A jury composed of Government employees where the Government was a party to the case on trial would not in the least conduce to respect for, or belief in, the fairness of the system of trial by jury. To maintain that system in the respect and affection of the citizens of this country it is requisite that the jurors chosen should not only in fact be fair and impartial, but that they should not occupy such relation to either side as to lead on that account to any doubt on that subject. . . . Modern methods of doing business and modern complications resulting therefore have not wrought any change in human nature itself, and therefore have not lessened or altered the general tendency among men, recognized by the common law, to look somewhat more favorably, though perhaps frequently unconsciously, upon the side of the person or corporation that employs them, rather than upon the other side. Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one (on account of his relations with one of the parties) who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence. The law therefore most wisely says that with regard to some of the relations which may exist between the juror and one of the parties, bias is implied, and evidence of its actual existence need not be given.
"The position of the juror in this case is a good instance of the wisdom of the rule. His position was that of an employee who received a salary from the United States, and his employment was valuable to him, not so much for the salary as for the prospect such employment held out for an increase in his business from the people who might at first come to his store for the purchase of stamps, etc. It need not be assumed that any cessation of that employment would actually follow a verdict against the Government. It is enough that it might possibly be the case, and the juror ought not to be permitted to occupy a position of that nature to the possible injury of a defendant on trial, even though he should swear he would not be influenced by his relations to one of the parties to the suit in giving a verdict. It was error to overrule the defendant's challenge to the juror."
Coming closer to the question at issue, the case of Citizens' L., H. P. Co. v. Lee, 182 Ala. 561, 578, is exactly in point. In that case the defendant held a policy of insurance covering the injury sued for to the amount of $5000. Concerning the right of the officers, agents and servants of the insurance company to act as jurors in that case, the court said:
"If the insurance company referred to in the motion and the evidence would be liable as for the judgment to be rendered in the case to the amount of $5000, then, of course, it had a direct pecuniary interest in the suit; and hence the stockholders, officers, agents, and servants of such company would be thereby disqualified as jurors for the trial of the case, and would be subject to challenge for such cause. If any such persons were on the venire or panels, it was not only proper that the court be informed thereof, but it was also necessary, in order that the jury might be purged of such disqualified persons."
Among other cases holding likewise are the following: Berbette v. State, 109 Miss. 94, 98, 67 So. 853; Featherstone v. Cotton Mills, 159 N.C. 429, 431, 74 S.E. 918; Georgia Railroad Banking Company v. Tice, 124 Ga. 459, 465, 52 S.E. 916, 4 Ann. Cas. 200; State v. Davis, 91 W. Va. 241, 242, 112 S.E. 414; Peklenuk v. Isle Royale Copper Co., 187 Mich. 644, 647, 153 N.W. 1068; Hufnagle v. Delaware Hudson Company, 227 Pa. 476, 479, 76 A. 205, 40 L.R.A. (N.S.) 982, 19 Ann. Cas. 850; Louisville Nashville Railroad Co. v. Cook, 168 Ala. 592, 598, 53 So. 190.
Respondent contends that juror Steininger's relationship to the insurance company in question was not ground of challenge for cause. The following cases are cited in support of this contention. [Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538, 540; Maurizi v. Western Coal Mining Co., 321 Mo. 378, 11 S.W.2d 268, 274; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673, 674; Ulmer v. Farnham, 28 S.W.2d 113, 115; Wendel v. City Ice Company of Kansas City, 22 S.W.2d 215, 217.] The cases cited are all Missouri cases. In neither of the cases was a juror challenged for cause. Neither of the cases discuss the competency of an officer, stockholder or agent of an insurance company as a juror in a case in which such company is interested in the result of the trial. They do hold that where it appears that an insurance company, although not a party to a suit, is financially interested in the result of the trial, the parties thereto are entitled to interrogate the jurors as to their connection, if any, with such insurance company, for the purpose of enabling them to intelligently make peremptory challenges. Such ruling is sound law, but it does not follow that if such interrogation should develop the fact that one or more of the prospective jurors was agent for the insurance company, that fact would not be ground of challenge for cause, and the cases do not so hold. Respondent also cites two Iowa Supreme Court decisions, Raines v. Wilson, 239 N.W. 36, 37, and Mortrude v. Martin, 172 N.W. 17, 22, holding that employment of a prospective juror as agent of an insurance company interested in the result of the cause on trial, is not ground of challenge for cause. These cases are out of line with the weight of authority on the subject. We hold it was error to overrule plaintiff's challenge to juror, Steininger.
Appellant contends that the trial court should have set the verdict aside because of false testimony offered by witnesses for defendant, relative to the alleged widening of the dirt shoulder along the edge of the pavement at the place where the collision occurred.
We find nothing in the record to justify the imputation of perjury, but as the judgment must be reversed on other grounds, no useful purpose would be served in discussing that question at this time.
Appellant next contends that the court erred in permitting witness, Copeland, to testify to the speed of appellant's automobile based upon the sound or hum of the motor.
Appellant's car was a Chevrolet roadster. Witness Copeland testified that he drove a Chevrolet; that he had driven a car since 1919; that he had been in contact with Chevrolet cars since 1925; that he was an automobile mechanic, and worked in the Chevrolet assembly plant for three years, did heavy repair work there. He further testified that from his experience with Chevrolet cars he was able to judge their speed by the sound of the motor; that the hum of a motor makes different sounds at different rates of speed; that judging from the flash of light he saw, and the time that elapsed between that and the collision, and the hum of the motor, he judged that appellant's automobile was traveling fifty or fifty-five miles per hour.
In Campbell v. St. Louis Suburban Ry. Co., 175 Mo. 161, 177, 75 S.W. 86, a witness who did not see a street car was permitted to testify to its speed from the noise it made. This court held that such evidence should have been rejected, not on the ground that a witness should not be permitted to judge the speed of a street car by the noise it made, but because it was not shown that the witness was qualified by experience to speak on that subject. In so holding, we said, "Long training and study make men so proficient in particular subjects that they sometimes really know more than to the casual observer seems possible, and therefore we ought to hesitate to pronounce as impossible the possession of such knowledge when it it claimed with a fair show of reason."
The Campbell case was reviewed in the later case of Stotler v. Railroad, 200 Mo. 107, 126, 98 S.W. 509. We there said:
"In the Campbell case, supra, a witness was allowed to testify over the objection of defendant that a car ran at twelve to fifteen miles an hour. The witness did not see the car. He was standing on his front porch about 125 feet from the accident, with a house intervening, and was permitted to give his opinion on the speed of the car, judged of alone from its noise. This court, through VALLIANT, J., reasoned out the conclusion that the evidence should have been excluded. But, in coming to this conclusion, care was taken not to say that the eye alone could convey an impression of speed to the mind; for it was not argued that a witness in a given instance might not be shown to have such unusual technical knowledge from experience and study as would entitle him to a speed opinion based only on the sound of a moving car. All that was said was that the witness under discussion was not shown to possess such qualifications."
We cannot say, as a matter of law, that witness Copeland's training and experience as an automobile mechanic, especially with Chevrolet cars, did not qualify him to judge the speed of a Chevrolet car by the sound or hum of the motor.
Appellant further contends that the court erred in refusing to permit her to prove, as an element of damages, the reasonable and necessary cost of medical and surgical treatment of one of her minor children for a condition existing at the time of her husband's death.
This alleged error is not preserved in the motion for new trial, hence, it is not here for review. [Hablutzel v. Home Life Insurance Co., 332 Mo. 920, 929, 52 S.W.2d 639.]
Since the case must be reversed because of the error in overruling plaintiff's challenge to juror Steininger, the alleged inadequacy of the verdict need not be considered.
The judgment is reversed and cause remanded. All concur.