Opinion
Opinion delivered June 13, 1949.
1. — Jury — Challenge to Array — New Trial. The general rule is that a challenge to the array, based on illegality in the selection of the jury panel, must be in writing prior to trial and verdict, but such challenge may be first complained of in motion for new trial if it is stated therein, and made to appear as a fact, that the aggrieved party had no knowledge before trial of the irregularity in selection of jury panel.
2. — New Trial. Where irregularity complained of occurred on Monday morning and case was tried on Tuesday and Wednesday in County in which there was a large number of divisions of court and defendant did not learn of illegality in selection of jury panel until more than 3 days after trial was completed, defendant could not have been held to have known thereof prior to trial and verdict, and complaint first made to irregularity in defendant's motion for new trial was timely.
3. — New Trial. Where judge in charge of jurors, while busy with other matters, instructed deputy sheriff to call roll of jurors and to excuse anyone who did not want to serve on jury was sufficient misconduct to warrant granting new trial, since conduct of judge was a violation of statute imposing upon him nondelegable duty to hear and determine all excuses of jurors.
4. — Jury. 1947 amendment to statute prescribing the method and manner of selecting jury panel provided that no clerk, deputy, lawyer or other officer of court may assist or aid any juror summoned in presenting any excuses that juror may have to avoid service clearly disclosed legislative intent that no officer of the court should use his influence in the slightest degree, in procuring the release of any member of the panel from jury service, and its provisions are mandatory.
Appeal from Circuit Court of Jackson County. — Hon. Thos. J. Seehorn, Judge.
AFFIRMED.
Walter W. Calvin for appellant.
(1) The trial court, in sustaining the defendant's motion to set aside the verdict, and to grant him a new trial in this cause, committed prejudicial, and reversible, error against the plaintiff herein. The matters and things set forth and alleged in paragraphs 3 and 4 of the defendant's motion for a new trial did not afford a sufficient legal basis for quashing the entire jury panel, or for challenging the array, as the same were not embodied in a proper motion, in writing, and presented to the court before the jury was sworn, or the trial begun, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. The grounds or reasons set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial herein, constituted but a futile attempt to challenge the array since they were wholly and legally insufficient for that purpose, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. The matters and things set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial herein, could not, legally and properly, have been presented, except when properly embodied in a challenge to the array, which could only have been interposed, in writing, and by a timely presentation thereof, the court could not, legally, consider the same, or, legally, predicate any ruling thereon; and, for that reason, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. Since the matters and things set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial were not in writing, and were not interposed before the jury was sworn, or the trial begun, they afforded no foundation, either in law or in fact, for the court's setting aside verdict and granting the defendant a new trial herein for that reason, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. State v. Brennan, 164 Mo. 487, 65 S.W. 325; State v. Church, 199 Mo. 605, 98 S.W. 16; State v. Belknap, (Mo.) 221 S.W. 39; State v. Garrett, 285 Mo. 279, 226 S.W. 4; State v. Vigus, (Mo.) 66 S.W.2d 854; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Darrow, (Mo.) 104 S.W.2d 249; Massman v. Kansas City Public Service Co., 119 S.W.2d 833; and, State v. Logan, 334 Mo. 351, 126 S.W.2d 256, 122 A.L.R. 417. (2) The court had no legal right, power or authority to set aside the verdict, and to grant the defendant a new trial in this cause, because of any irregularities, which, allegedly, occurred, or were committed, in the impaneling of the jury on return day; and, its action, in sustaining the defendant's motion for a new trial, for the reason assigned, not only constituted prejudicial and reversible error, as against the plaintiff, but also constituted, and was, an arbitrary and capricious act on its part, and a gross abuse of its judicial discretion in the premises. Cases, supra.
W.H. Hoffstott, Tom Parrish and Morrison, Nugent, Berger, Hecker Buck for respondent.
(1) The trial court properly granted defendant a new trial because the jury panel was not selected in accordance with the statutory requirements. Sec. 757, R.S. Mo., 1939 (Amended, Laws 1947, Vol. 1, p. 342); State v. Rouner, 333 Mo. 1236, 64 S.W.2d 916 (1933); State v. Austin, 183 Mo. 478, 82 S.W. 5 (1904); Berry v. Trunk, 185 Mo. App. 495, 172 S.W. 629 (1915); State v. Clark, 256 S.W. 554 (Mo. App., 1923); State v. Weeden, 133 Mo. 70, 34 S.W. 473 (1896); Massman v. K.C. Pub. Serv. Co., 119 S.W.2d 833 (Mo. Sup., 1938); Jerabek v. City of St. Joseph, 159 Mo. App. 505, 141 S.W. 456 (1911); People v. Labadie, 66 Mich. 702, 33 N.W. 806; Healy v. People, 177 Ill. 306, 52 N.E. 426; Jones v. State, 3 Blackf. (Ind.) 37. (2) Plaintiff failed to make a submissible case against defendant. Court should enter judgment for defendant, or, court may affirm the trial court upon the ground it should have sustained defendant's motion for a directed verdict. Milazzo v. Kansas City Gas Co., 180 S.W.2d 1 (Mo. Sup., 1944); State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801 (1931); Smothers v. Welch Co. House Furnishing Co., 310 Mo. 144, 274 S.W. 678 (1925); Rohrmoser v. Household Finance Corp., 231 Mo. App. 1188, 86 S.W.2d 103 (1935); Priest v. F.W. Woolworth Five Ten Cent Store, 228 Mo. App. 23, 62 S.W.2d 926 (1933); Peerless Fixture Co. v. Keitel, 355 Mo. 144, 195 S.W.2d 449 (1946); Sawoski v. Baird, 334 Mo. 951, 69 S.W.2d 649 (1933); Schreiner v. City of St. Louis, 203 S.W.2d 678 (Mo. App., 1947); Blanford v. St. Louis Public Service Co., 199 S.W.2d 887 (Mo. App., 1947); Industrial Loan Co. of Cape Girardeau v. Grisham, 115 S.W.2d 214 (Mo. App., 1938); Missouri Supreme Court Rule 3.27.
James P. Doran, plaintiff, sued Rubin Spivak, defendant, for damages alleged to have been sustained as a result of an assault and battery committed by one Stewart, manager of a hotel operated by defendant, while plaintiff was a guest in said hotel. The jury returned a verdict for plaintiff for $2000 actual and $1000 punitive damages, the full amount sued for. The court granted a new trial on defendant's motion and plaintiff appeals. Mr. Spivak has since died and, on this appeal, his administratrix is the respondent.
One of the grounds stated by defendant in his motion for new trial is that a deputy sheriff, instead of the judge who was authorized to do so, excused from service a large number of jurors who constituted a part of the regular panel selected for service at the session of court at which this case was tried, in violation of the statutes regulating the empanelling of jurors; that defendant had no knowledge of such procedure and statutory violation until after the trial of this cause had been completed; and that, therefore, defendant had no opportunity, previous to the filing of his motion for new trial, to object to, or to challenge, the panel. The court granted a new trial on this ground.
Section 757, Amended Laws, 1947, Vol. 1, page 342, provides as follows:
"Where the circuit court is composed of more than one division except as hereinafter provided, one general panel of jurors shall be drawn for all civil or criminal divisions, the number of names to be drawn for such general panel to be determined by the judge designated by a majority of said judges of said court. Said panel shall be drawn and summoned as provided in sections 758 and 761 of this act, and all jurors so summoned shall appear before said judge of said circuit court, which said judge shall hear and determine all excuses of said jurors. No clerk, deputy, lawyer or other officer of court may in any manner assist or aid any juror so summoned in presenting any excuses that said juror may have to avoid service." (Emphasis ours).
The facts with respect to excusing jurors from service, in this case, are as follows: The circuit judge, who had been properly designated as the one before whom all jurors summoned for service should appear and present their excuses and have same determined by him, was busy with other matters on the morning that the members of the panel reported. He passed the "bull pen," where said jurors were awaiting further instructions, and noticed that there was an unusually large number present, probably 225 or 250, far more than probably would be needed. He instructed the deputy sheriff, who attends his court, to call the roll of jurors and to "let everybody off that wanted off, that did not want to serve on the jury, over the number of approximately 155." The evidence is to the effect that the deputy, so instructed, proceeded to carry out the judge's instructions in this respect, and that he excused every one on the panel who did not want to serve. This action was taken entirely outside of the presence of the judge who was, at the time, in his chambers. After a large number of jurors were so excused from the panel the number left for service was about 150 or 155.
Defendant does not suggest that any one participating in, or responsible in any manner for, the proceedings herein mentioned, acted with an improper or wrong motive. Defendant simply contends that, since the provisions of the statute admittedly were not followed, the panel is an unlawful panel; and that the members thereof, before whom this case was tried were, in effect, nothing more than volunteers, lacking any legal status or authority.
There can be no question but that the procedure followed, with reference to excusing members of the jury panel, was not in conformity with the provisions of the statute. Plaintiff contends, however, that a challenge to the array, based on illegality in the selection of the jury panel, must be made in writing prior to trial and verdict. The above is the general rule, and has been so declared many times. State v. Darrow, 104 S.W.2d 249, l.c. 251; State v. Garrett, 226 S.W. 4, l.c. 6, 285 Mo. 279, l.c. 287; State v. Logan, 126 S.W.2d 256, l.c. 258; Massman v. Kansas City Public Service Company, 119 S.W.2d 883, l.c. 887.
However, as is true of most rules known to the law, the above rule has its exceptions. Massman v. Kansas City Public Service Company, supra, l.c. 838. Where no motion to quash the panel is filed, and the error is first complained of by motion for new trial, if it is stated therein, and made to appear as a fact, that the aggrieved party had no knowledge, before trial, of the irregularity complained of, and could not be held to have had such knowledge, an objection to the manner in which the panel is chosen is timely made if first made in the motion for a new trial. Massman v. Kansas City Public Service Company, supra; State v. Rouner, 64 S.W.2d 916, 333 Mo. 1236, l.c. 1249; State v. Garrett, supra.
In State v. Rouner, supra, it was said that in virtually all of the cases where it was held that objection to illegality in selection of the jury panel comes too late when made for the first time in the motion for new trial, "the record showed that the defendant had knowledge of the grounds of objection before the verdict was returned or that he or his counsel had means of knowledge in the records of the trial court and of the particular cause." In the instant case it is alleged in the motion that defendant did not learn of the illegality until after the trial was completed. The irregularity complained of occurred on Monday morning, April 26, 1948 and this case was tried on Tuesday and Wednesday, April 27 and 28, 1948. In view of the large number of divisions of court in Jackson County, the fact that many of such divisions are frequently in session simultaneously, it is not at all surprising that defendant failed to learn of the irregularity until more than three days after same occurred. Under the circumstances here shown we cannot say that he will be held to have known thereof prior to trial and verdict. The complaint was timely made in defendant's motion for new trial.
Plaintiff, while not conceding the point, makes no contention that the irregularity shown to have been committed with reference to selection of the panel was not such as would justify the trial court in sustaining a motion for new trial on that ground. We think such action was fully justified. State v. Rouner, supra.
The Legislature, at its 1947 session, amended the laws prescribing the method and manner of selecting jury panels in Jackson County. A significant addition or amendment thereto is the italicised portion of the statute quoted, supra. The lawmaking body thereby made clear its intention that no officer of the court should use his influence, in the slightest degree, in procuring the release of any member of the panel from jury service. That provision is not merely directory; it is mandatory. If we should hold otherwise, such holding would be in the teeth of the statute and of the positively expressed legislative intent. It is the duty of this court to give effect to statutes enacted by the Legislature, not to nullify them by judicial misinterpretation. In this case a deputy was permitted to, and did, perform a function which was delegated to the judge exclusively and, in so doing, himself violated the statute.
By the above statutory provision the Legislature sought, as the courts ever seek, to preserve inviolate the right of every citizen to a trial before an impartial and fairly chosen jury of his fellowmen. The temple of American justice, without which there can be no freedom as we know freedom, has the jury as one of its foundation stones. If our judicial system should fail the entire American way of life would be jeopardized. Every measure which tends to promote a fair selection of the jury panel should be zealously enforced, for if the source of the stream is pure there is less likelihood that the stream of justice will be contaminated.
Defendant contends that no submissible case was made. Since, in effect, no legal trial was had, we must affirm the judgment of the trial court awarding defendant a new trial. Therefore it would seem inappropriate to discuss the evidence at this time.
The judgment should be affirmed. Boyer, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. Dew, P.J., Cave, J., concur; Vandeventer, J., (sitting by order of Supreme Court) concurs.