Prewitt v. Cofer

979 S.W.2d 521, 1998 Mo. App. LEXIS 1967, 1998 WL 761435
CourtMissouri Court of Appeals
DecidedNovember 3, 1998
Docket73421
StatusPublished
Cited by5 cases

This text of 979 S.W.2d 521 (Prewitt v. Cofer) 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
Prewitt v. Cofer, 979 S.W.2d 521, 1998 Mo. App. LEXIS 1967, 1998 WL 761435 (Mo. Ct. App. 1998).

Opinion

AHRENS, Judge.

Defendant appeals from a jury verdict in favor of plaintiff on plaintiffs claim of negligence. We remand.

Plaintiff sued defendant for injuries she sustained in a vehicle accident. On August 5, 1997, the jury, by unanimous vote, awarded plaintiff damages in the amount of $95,-000.00. Defendant filed a motion for a new trial on September 3,1997 which alleged that two jurors, Terbrock and Wayland, intentionally concealed information during voir dire and on their juror qualification forms. At the hearing on the motion, the court heard testimony from Juror Terbrock, but did not permit Juror Wayland to testify. Defen *523 dant’s motion was denied on October 10, 1997.

In defendant’s first point on appeal, she contends that the trial court abused its discretion in denying her motion for a new trial because Jurors Terbrock and Wayland failed to disclose information during voir dire which prejudiced her right to a fair and impartial jury. In defendant’s second point on appeal, she alleges that the trial court erred in its denial of an evidentiary hearing on her motion for a new trial. 1 As the issues are intertwined, we shall address defendant’s first and second points together.

The determination of whether concealment is intentional or unintentional is left to the sound discretion of the court. Williams v. Barnes Hosp., 736 S.W.2d 38, 36 (Mo. banc 1987). “Intentional nondisclosure occurs: 1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that [the juror’s] purported forgetfulness is unreasonable.” Id. Unintentional nondisclosure exists where the experience was insignificant or remote in time, or where the venireman reasonably misunderstands the question posed. Id. Where a nondisclosure is both unintentional and reasonable, the relevant inquiry is whether the juror’s presence did or may have influenced the verdict so as to prejudice the party seeking a new trial. Anglim v. Missouri Pacific R. Co., 832 S.W.2d 298, 306 (Mo. banc 1992).

The trial court denied defendant’s motion for a new trial without specific findings. When such a motion is denied, we consider all findings necessary to the result to be implicit in the trial court’s decision. Rogers v. Bond, 880 S.W.2d 607, 610 (Mo.App.1994). We may overturn a determina tion of whether a nondisclosure is intentional or unintentional only upon a showing of abuse of discretion. Id. at 611.

Through an offer of proof at the evidentia-ry hearing, defendant included evidence pertaining to the alleged misconduct of Jurors Terbrock and Wayland in the record on appeal. Parkton Ass’n v. Armstrong, 878 S.W.2d 50, 53 (Mo.App.1994). A review of the record reveals that Juror Terbrock had been in an automobile accident in which his son sustained injuries. As a result of this accident, Juror Terbrock received payments totaling $11,200.00 plus the salvage value of his truck and car rental. During voir dire, plaintiffs counsel asked:

[C]ould I see the hands of anyone here on the panel who has been in an automobile accident? Okay. As expected most of the hands go up. Could I see the hands of people who were injured in that automobile accident[?]
Anyone else on the panel who has at any time asserted any type of a claim for any injury that you may have received to your body?

Nondisclosure of information may only occur after a clear question is asked on voir dire. Wingate v. Lester E. Cox Medical Ctr., 853 S.W.2d 912, 916 (Mo. banc 1993). Juror Terbrock only had a duty to affirmatively respond if he in fact suffered an injury or asserted a claim for an injury. At the evidentiary hearing, Juror Terbrock testified that he was not injured in the automobile accident and had never told anyone that he had been injured in the accident. He did testify that had had “sore spots” on his back, but stated that they “went away after a few days.”

Even if we were to find that soreness constituted an “injury,” in light of the totality of the circumstances, we find that the trial court could have reasonably accepted Juror Terbrock’s explanation of his failure to disclose the “sore spots” on his back and conclude that his nondisclosure was unintentional. See Rogers, 880 S.W.2d at 611. Juror Terbrock did not remember the “sore spots” at voir dire or at the hearing until he was specifically reminded of them. Further, even though “most” of the prospective jurors indi *524 cated that they had been involved in a automobile accident, plaintiff did not explain or define that soreness constituted an “injury.” Finally, defendant did not pursue this question during her voir dire even though she was aware that, although a significant number of prospective jurors indicated involvement in an automobile accident, only three disclosed that they had been injured. Id,.; Williams, 736 S.W.2d at 38.

In any event, defendant’s right to a fair trial and the integrity of the jury process was not so impaired by Juror Terbrock’s conduct as to this issue to support a finding that defendant was prejudiced. See Anglim, 832 S.W.2d at 306. Because of his greater ability to observe the juror’s demeanor during voir dire and during his testimony at the eviden-tiary hearing, we give great deference to the trial court on the matter of credibility. Id. The record supports the trial court’s finding of an innocent nondisclosure which caused no prejudice to defendant.

Defendant then argues that Juror Ter-brock intentionally concealed a personal injury claim with an insurance carrier as a result of the accident. Juror Terbrock testified that he did not file a claim against an insurance company for personal injury. He testified that the insurance payment he received as a result of the accident was to compensate him for “a new truck, truck tool box [and] two days off work.” We find nothing in the record on appeal that refutes Juror Ter-broek’s testimony.

Defendant also alleges misconduct when Juror Terbrock failed to respond to the question “[h]ave you or any member of your immediate family ever suffered any bodily injury and or [sic] been a party to any lawsuit?” The record reveals that Juror Ter-brock’s minor son was injured in an automobile accident and subsequently filed a claim with an insurance company. A juror has a duty to answer all questions directed at him and the panel generally. Williams, 736 S.W.2d at 36. During voir dire, the following exchange took place:

[Defendant’s counsel]: Thank you. Ms. Crow or Crowe?
[Venireperson] Crowe: It’s Crowe.

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Bluebook (online)
979 S.W.2d 521, 1998 Mo. App. LEXIS 1967, 1998 WL 761435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prewitt-v-cofer-moctapp-1998.