Pemberton v. Tip Top Plumbing & Heating Co.

618 S.W.2d 711, 1981 Mo. App. LEXIS 2893
CourtMissouri Court of Appeals
DecidedJune 23, 1981
DocketNo. WD 31732
StatusPublished

This text of 618 S.W.2d 711 (Pemberton v. Tip Top Plumbing & Heating Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pemberton v. Tip Top Plumbing & Heating Co., 618 S.W.2d 711, 1981 Mo. App. LEXIS 2893 (Mo. Ct. App. 1981).

Opinion

MANFORD, Presiding Judge.

This is an action for damages for personal injury. The jury awarded appellant $75,-000.00. Respondent filed an alternative motion for remittitur, judgment N.O.V. or for a new trial. The new trial motion was premised upon alleged misconduct of three jurors. After a hearing on the motion, the trial court sustained respondent’s motion for new trial. This appeal followed. The judgment is affirmed.

Pursuant to its motion for new trial, respondent offered the testimony of two jurors in support of respondent’s contention that these jurors had, upon voir dire, failed to disclose prior claims involving bodily injuries. This hearing was adjourned and when reconvened, an additional juror was called and testimony entered. Following this hearing, respondent amended its motion for new trial. Leave to amend was granted without argument or objection. The amendment was premised upon alleged newly discovered evidence that one of the three jurors had suffered from a stroke and memory loss, and as a result, denied remembering an accident of June, 1978. It was alleged that this failure to disclose was additional misconduct.

The trial court, after hearing the testimony, sustained respondent’s motion for a new trial, holding that the three jurors improperly failed to disclose prior claims and lawsuits in which they had sustained bodily injuries. In its order, the trial court found that all three jurors intentionally failed to disclose prior claims and that such omission denied respondent a trial before a fair and impartial jury.

This appeal followed, with appellant alleging insufficient evidentiary facts to support the trial court’s findings and that such findings were not in accordance with the law.

A review of the record discloses that there was sufficient evidence to support the trial court’s findings and order. The only question on this appeal is whether the trial court was possessed with authority to so act and whether such action was within such authority. The question concerning whether or not the failure of a juror to respond to questions concerning qualifications to sit on a jury amounts to intentional concealment is a matter within the discretion of the trial court and review of that authority is limited to ascertaining whether or not the record “unmistakably” discloses an abuse of that discretion. Beggs v. Universal C.I.T. Credit Corporation, 387 S.W.2d 499, 503 (Mo.banc 1965); Terrell v. Bailey Limestone Co., Inc., 575 S.W.2d 775, 779 (Mo.App.1978).

On appeal, the reviewing court must determine if there is a logical basis for the finding of intentional concealment by the trial court, Rodenhauser v. Lashly, 481 S.W.2d 231, 234 (Mo.1972). When a motion for new trial has been sustained, appellate courts will be more liberal in upholding the trial court’s action. Cook v. Cox, 478 S.W.2d 678, 682 (Mo.1972); Girratono v. Kansas City Public Service Co., 272 S.W.2d 278, 281 (Mo.1954) and Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 491 (1940).

The duty of a juror during voir dire is to fully, fairly and truthfully answer [713]*713all questions directed to him. This duty is directed toward and is crucial in securing, in any given case, a fair and impartial jury. Girratono, supra. Beggs addresses the question of what result follows the failure of a juror to correctly answer any question concerning his qualifications, the result hinging upon whether or not the juror was guilty of intentional concealment. Direct evidence, as in any situation, is the ideal in determining the existence of intentional concealment, but such determination can also be inferred from circumstantial evidence which reasonably supports a finding of concealment. Don Shrum v. Valley Mineral Products Corp., 563 S.W.2d 67, 69 (Mo. banc 1978), and Rodenhauser, supra, at 234.

Prospective jurors cannot unilaterally determine their own qualifications, Beggs, supra, and Woodworth v. Kansas City Public Service Company, 274 S.W.2d 264, 271 (Mo.1955). The intentional concealment of a prior personal injury claim on voir dire inquiry as to whether such claims have ever been made should disqualify a juror and if necessary, give rise to a new trial, Blond v. Overesch, 527 S.W.2d 663, 664 (Mo.App.1975).

The most recent pronouncement on this issue involved an action for negligence arising from an automobile collision wherein a venireman failed to disclose a prior claim for damages and the reviewing court observed that bias and prejudice may be inferred from intentional concealment of information on voir dire. This decision was that of Marshall v. Brown, 608 S.W.2d 105 (Mo.App.1980). In Marshall, the court stated:

“. . . a new trial is mandated in this case because of the failure of a venireman to disclose on voir dire that she had made a claim for damages suffered in a previous automobile accident. Intentional concealment of information on voir dire may be grounds for the granting of a new trial, since bias and prejudice of the venireman may be inferred from such concealment. Unintentional failure to disclose information does not necessarily give rise to such an inference. Determination of whether concealment was intentional or not is left to the discretion of the trial court, its ruling to be reversed only upon a clear showing of abuse of that discretion. In that connection, however, it should be noted that appellate courts are more liberal in upholding a trial court’s granting of a motion for a new trial than in upholding a trial court’s denial of such a motion...”

and further,

“During his interrogation, plaintiff’s counsel asked Mrs. Nickel individually: ‘Did you ask for a settlement from [the insurer]?’ Mrs. Nickel later explained her negative response to this question by stating that her own insurance company had paid her bills. We find this explanation inadequate. Her statement may explain why she did not litigate her unsuccessful claim, but in no way explains why she gave an inaccurate answer during voir dire denying that she had made a claim. We think it reasonable to infer from Mrs. Nickel’s attempted explanation a belief on her part that, since she received full compensation from her own insurance company, she was not a disgruntled, unsuccessful claimant likely to be biased. A venireman, however, is not the proper judge of his or her qualifications to sit as a juror.” Marshall v. Brown, supra at 109, 111 (citations omitted)

In the instant case, the trial court did not “unmistakably” abuse its discretion, Girratono, supra.

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Related

Beggs v. Universal CIT Credit Corporation
387 S.W.2d 499 (Supreme Court of Missouri, 1965)
Cook v. Cox
478 S.W.2d 678 (Supreme Court of Missouri, 1972)
Girratono v. Kansas City Public Service Company
272 S.W.2d 278 (Supreme Court of Missouri, 1954)
Blond v. Overesch
527 S.W.2d 663 (Missouri Court of Appeals, 1975)
Woodworth v. Kansas City Public Service Company
274 S.W.2d 264 (Supreme Court of Missouri, 1955)
Reich v. Thompson
142 S.W.2d 486 (Supreme Court of Missouri, 1940)
Rodenhauser v. Lashly
481 S.W.2d 231 (Supreme Court of Missouri, 1972)
Don Shrum, Inc. v. Valley Mineral Products Corp.
563 S.W.2d 67 (Supreme Court of Missouri, 1978)
Terrell v. Bailey Limestone Co.
575 S.W.2d 775 (Missouri Court of Appeals, 1978)
Marshall v. Brown
608 S.W.2d 105 (Missouri Court of Appeals, 1980)

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618 S.W.2d 711, 1981 Mo. App. LEXIS 2893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pemberton-v-tip-top-plumbing-heating-co-moctapp-1981.