Opinion
No. 21824.
March 16, 1953.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOHN R. JAMES, J.
Charles L. Carr, Hale Houts, Alvin C. Randall, Hogsett, Depping, Houts James, Kansas City, for appellant.
O. Hampton Stevens, Kansas City, for respondent.
This is an action for damages for personal injuries. Plaintiff had a verdict and judgment for $2,500 and defendant has appealed. Plaintiff was a passenger on one of defendant's busses in Kansas City, Missouri. When the bus, proceeding in a westerly direction, reached a point between McGee Street and Grand Avenue, on Eleventh Street it came to a sudden and violent stop, as a result of which plaintiff was injured. Defendant makes no claim that plaintiff did not make a submissible case, nor does it assert that the verdict is excessive. It presents three points.
The first is that the court erred in refusing to grant it a new trial upon the ground that one of the jurors, Nelson F. Southard, failed and refused to answer when counsel asked all prospective jurors on the voir dire examination whether they had ever had a claim against defendant.
It was shown at the hearing on the motion for new trial that Juror Southard had received the sum of $75 from defendant for injuries sustained while a passenger on one of its street cars in September, 1947. When asked why he did not disclose that fact his answers were: "I thought when I accepted this I would accept that which was to keep me from putting in a claim. * * * I thought if you made a claim you had to put it in yourself. * * * I didn't think it was a claim. * * * If I was going to make a claim I would have gone down there and made it the next day myself." It appeared that defendant's investigator had gone to Southard's home and paid him the $75, taking a release. He further testified that he had no ulterior motive in concealing the alleged claim and at no time had any malice or ill feeling against defendant.
The latest expression upon the question is by the St. Louis Court of Appeals in the case of Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348. The situation in that case was almost identical to that disclosed in the case at bar. We quote from the Harrison opinion, 251 S.W.2d loc. cit. 351, as follows:
"In a case such as this, where a juror has failed to disclose some fact on voir dire examination which might reasonably have affected his qualification to sit as a juror in the case, the question of what consequence shall follow resolves itself into one of whether he was guilty of an intentional concealment of the matter concerning which he was being subjected to interrogation. If the conclusion be reached that his failure to answer amounted to deception, and that the losing party was thereby denied the fair trial to which it was entitled, the only effective remedy would be to set aside the verdict and award a new trial. Piehler v. Kansas City Public Service Co. [357 Mo. 866, 211 S.W.2d 459], supra. However an unintentional failure to disclose information not directly connected with the case does not necessarily show prejudice on the part of the juror so as to call for the trial of the case anew. Davis v. Kansas City Public Service Co, 361 Mo. 61, 233 S.W.2d 679; O'Brien v. Vandalia Bus Lines [351 Mo. 500, 173 S.W.2d 76], supra. In the final analysis, therefore, the question of what the result shall be must be left primarily to the discretion of the trial court, reviewable only for abuse, and with the court's decision to conclude the matter unless an abuse of discretion unmistakably appears. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795."
In our opinion, it is clear that the trial court did not abuse its discretion in ruling that there was no intentional concealment on the part of Juror Southard. The cases of Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459 and Bass v. Durand, 345 Mo. 870, 136 S.W.2d 988, relied upon by defendant involved situations far different from that in the instant case.
Defendant's second point is that the court "erred in refusing to discharge the jury, or reprimand plaintiff's counsel, when he told the jury that plaintiff was required to support her two children."
The transcript discloses that in the opening statement of plaintiff's attorney, after describing the manner in which plaintiff was hurt and the extent of her injuries, the following occurred.
"Mr. Stevens: (Plaintiff's Counsel) The evidence will be that Mrs. Tyler was unable to go back to work for three months, and the evidence will be that at that time she was divorced, or at least separated from her husband, and was supporting her two children —"
(Whereupon, the following proceedings were had within the presence but without the hearing of the jury:)
"Mr. James (interrupting): If the Court please, the defendant objects to that statement about the two children, and defendant asks that the Court declare a mistrial and discharge the jury for the reason that plaintiff in his opening statement has made the prejudicial remark that the plaintiff was supporting her children. It is not material in the case and it certainly is prejudicial.
"Mr. Stevens: I was about to add that she went back to work sooner than she should have because she had to go to work to support her children.
"The Court: You hadn't reached that point yet, and I think it would be error. Motion to discharge the jury is overruled. Do not pursue that any further.
"Mr. James: If the Court please, the defendant does not believe that if you direct the jury to disregard this statement that would do away with the error, but to preserve the record we now request the Court to instruct the jury to disregard the statement and to reprimand the counsel and tell the jury that has nothing to do with the case."
(Whereupon, the following proceedings were had within the hearing and presence of the jury:)
"The Court: Ladies and gentlemen of the jury, Mr. Stevens made some remark in his opening statement here about the plaintiff supporting her children. Disregard that; it has no place in this case."
There can be no doubt that the rule is as stated in the case of Dittmeier Real Estate Co. v. Southern Surety Co., Mo. Sup., 289 S.W. 877, 888, that: "The general manner and character of an opening statement are within the sound discretion of the trial court, and such discretion is subject to review by the appellate court only when abused to the prejudice of the party complaining."
In this instance the court, in effect, sustained defendant's objection. It instructed the jury to "disregard" the remark of plaintiff's counsel, saying, "it has no place in this case." It also admonished counsel not to "pursue" the matter "any further". Having sustained the objection, the further course to be pursued was a matter resting largely within the court's discretion. Wolfson v. Baltimore Bank of Kansas, Mo.App., 157 S.W.2d 560, 567, 568. Under all the circumstances, we do not think that the trial court abused its discretion and, accordingly, rule the point against defendant.
Defendant's third and last complaint is that the court erred in giving Instruction 1 on behalf of plaintiff because of the definition of the highest degree of care contained therein. In support of this contention defendant cites the case of Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373, and two decisions which follow it. In each of those cases the court was considering the care required by an operator of a private motor vehicle and not that of the operator of a public vehicle, as in the instant case.
In the Borgstede case the instruction given on behalf of the respondent therein was held to be erroneous for the reason that the driver of a motor vehicle is not required to use more skill than is possessed by the average competent driver of cars, whereas, the instruction told the jury he must possess the skill of a very competent person. In the course of the opinion in that case, 88 S.W.2d loc. cit. 376, this language appears: "Respondent has also cited a number of cases dealing with the care of public carriers for hire and the skill required of their operators. Those cases will not be reviewed because there is obviously a distinction, which the law has recognized, between public carriers of passengers for hire and operators of private motorcars." (Emphasis ours.)
Among the many cases discussing and defining the duty imposed upon public carriers of passengers are Stauffer v. Metropolitan St. Railroad, 243 Mo. 305, 316, 317, 147 S.W. 1032; Heyde v. St. Louis Transit Co., 102 Mo.App. 537. 541, 77 S.W. 127; Furnish v. Mo. Pac. Ry. Co., 102 Mo. 438, 13 S.W. 1044. Those decisions disclose that there is no merit in defendant's contention.
Finding no error prejudicial to defendant, the judgment should be affirmed. It is so ordered.
All concur.