Knowles ex rel. Cheatum v. Goswick

476 S.W.2d 563, 1972 Mo. LEXIS 928
CourtSupreme Court of Missouri
DecidedFebruary 22, 1972
DocketNo. 55859
StatusPublished
Cited by6 cases

This text of 476 S.W.2d 563 (Knowles ex rel. Cheatum v. Goswick) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knowles ex rel. Cheatum v. Goswick, 476 S.W.2d 563, 1972 Mo. LEXIS 928 (Mo. 1972).

Opinion

JACK P. PRITCHARD, Special Judge.

For personal injuries, respondent received a verdict and judgment against appel[564]*564lants for $45,000.00. The points asserted for claimed reversal of the judgment are limited to (1) alleged misconduct of a prospective juror in failing to reveal a previous claim for injuries on voir dire examination; (2) failure of the court to declare a mistrial for alleged improper argument of counsel in arguing the amount of damages; and (3) the court’s giving of Instructions Nos. 3 and 4 on the same sheet of paper, allegedly overemphasizing the meaning of the term “highest degree of care.”

On voir dire examination appellants’ counsel asked, “Has any member of this panel ever been injured in an automobile accident of any kind ? ” and “Have any of you or has any member of the panel been seriously injured, before ? ” (Italics supplied.) Prospective juror Leota Ferguson answered that she had been in a minor car accident and had suffered a fall in a store, the claim for which had been settled. Leo-ta stated that these matters would not prejudice her for or against either party. Further questions were asked, “Has anybody ever brought a lawsuit for personal injuries received in a fall downstairs or in an automobile accident or however? Nobody here ever been a plaintiff or brought a lawsuit? Have any of you made a claim as a result of such casualty, falling downstairs or slipping and falling, being in an automobile and getting into an accident ? ” Leota further answered that she received a whiplash injury when a car drove in front of her, and that the case had been settled with an insurance company. Prospective juror Anderson stated that he had a claim concerning a young boy running into the side of his car at which time he had collision insurance.

Prospective juror Gladys Alford made no response to any of counsel’s voir dire examination above. On motion for new trial it was developed that Gladys had been involved in an automobile accident on October 30, 1965. She did not remember counsel for respondent asking if any member of the panel had been injured in an automobile accident of any kind. She had some hearing difficulty, but not any particular problem with it. She was seventy years of age at the time of the motion for new trial, at which time she testified that had she heard the question put to the panel she would have answered “No.” “Q. Mrs. Alford, have you been injured in an automobile accident? A. Well, I can’t really say that I have. I have never been injured in an automobile accident. May I go ahead and — MR. BUEHNER: Yes, ma’am. A. (Continuing) If you are talking about the Creacy accident, it was a very, very minor accident which didn’t — I didn’t recall it whatsoever. Q. You had no recollection of it? A. No, I didn’t recall it because it was such a minor deal. * * * Q. Tell us what injuries you got as a result of that accident. A. I didn’t get any. Q. Pardon? A. I didn’t get any. Q. Did you see a doctor after that accident? A. No, sir.” Gladys went across the road to call the State Patrol when this accident happened. She was examined by a doctor at the hospital only because Mrs. Creacy insisted, and she did see a doctor several times in a month on the claim agent’s suggestion when she told him she had a pain in the lower side when she drew a long breath. Gladys and her husband signed a release and received $260.00 thereunder for “all claims known and unknown.” In further explanation, Gladys testified, “I received this injury you were talking about, about the Creacy’s, but this never entered my mind being my own. I just thought that it wasn’t me that you were trying. I thought it was the other party. It wouldn’t have registered.” The matter of her claim and receiving money as a result of the accident did not come to her mind at any time during her deliberations, and not until one of respondent’s attorneys asked her about it about three weeks before the hearing on the motion for new trial. The verdict of the jury was signed by eleven persons, including Gladys Alford.

It is the function of the trial court, in an exercise of discretion reason[565]*565ably supported by the record, to determine whether a prospective juror’s failure to answer questions relative to prior involvement in an accident was an intentional concealment of such information, thus enabling such person to participate in and influence a verdict to the prejudice of the opposite party. Logsdon v. Duncan, Mo., 293 S.W.2d 944, 947; Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278, 281 [3]. And see the basic considerations and determining rules on such question in Beggs v. Universal C. I. T. Credit Corporation, Mo., 387 S.W.2d 499, 503 [2-8], as summarized in Rinkenbaugh v. Chicago, Rock Island & Pacific R. Co., Mo., 446 S.W.2d 623, 626 [1-5].. It is true, as stated in the Logsdon case, and others, that the consideration is different as to whether the trial court refused or granted a new trial, but the basic inquiry is still whether the trial court’s exercise of discretion is reasonably supported by the record. Here, Mrs. Alford’s answers to questions that she did not recollect at all her own minor experience, that it never entered her mind, are sufficient for the trial court to find, as it did, “The Court had the opportunity to observe Mrs. Alford’s demeanor at trial and at this hearing, under vigorous examination and finds that her failure to divulge a 1965 accident in which she was involved and the attendant settlement was not intentional or willful; that the matter did not influence her judgment in this case and that no prejudice resulted to defendants as a result of her failure to disclose the circumstances of this prior accident and claim upon voir dire questioning.” Compare, on similar circumstances, the cases where the refusal to grant a new trial for alleged misconduct of jurors in failing to answer voir dire questions was affirmed: Akers v. St. Louis Public Service Company, Mo., 370 S.W.2d 347, 353[5, 6] et seq.; Mantz v. Southwest Freight Lines, Mo., 377 S.W. 2d 414, 418; and Dawson v. Butts, Mo., 434 S.W.2d 547, 549. Further citation of the many cases on the subject is unnecessary.

Appellants say that there was improper argument of respondent, for which a mistrial was requested and denied, inviting the jury to consider loss of wages for the balance of the anticipated life span of respondent when such argument was not supported by the evidence.

After the collision respondent was given emergency treatment at a Neosho, Missouri, hospital. She was then taken to St. Edward’s Hospital in Fort Smith, Arkansas, where she remained for about two months undergoing treatment and surgery. Her injuries received in the collision, besides bruises, cuts and abrasions, were that an area of flesh the size of a man’s hand was torn from her right leg and foot, exposing the bone and tendons; a toe was torn from the foot; and her right collarbone was fractured. Gangrene was detected and respondent underwent surgery in an attempt to save her foot, and three skin grafts from her left buttock and thigh were done.

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476 S.W.2d 563, 1972 Mo. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knowles-ex-rel-cheatum-v-goswick-mo-1972.