Don Shrum, Inc. v. Valley Mineral Products Corp.

DONNELLY, Judge. Plaintiffs filed a private nuisance suit seeking injunctive relief and damages. They alleged that defendant’s operation of its quarry and kiln was causing an excessive amount of dust to settle over their properties, and that this dust, when combined with the water of a dew or light rain, produced a caustic mixture which hardened into a mortar-like substance and was difficult to remove. Plaintiffs tried their case on the damage issue alone. The jury found for defendant. Plaintiffs sought a new trial and it was denied. They appealed to the St. Louis District of the Court of Appeals [68] where the judgment was affirmed. The cause was then transferred here by order of this Court. The determinative question on this appeal is: when intentional concealment by a juror on voir dire examination is asserted by a party, must proof of such asserted concealment be made by testimony from the juror whose concealment is at issue at a hearing on a motion for new trial, or may intentional concealment be shown by the circumstances in evidence in the particular case? During the voir dire examination of prospective jurors, the following transpired: “Are any of you acquainted with, or related by blood or marriage, with Mr. Ben Donnell, who is an officer of that company? “MRS. VAN TAYLOR: I’m acquainted with him, but— “MR. R. R. ROBERTS: Okay. Do you think that would affect your judgment in this case in any way, Mrs. Van Taylor? “MRS. VAN TAYLOR: No. “MR. R. R. ROBERTS: Just not a close friendship? Just a close acquaintanceship, would you say? “MRS. VAN TAYLOR: (Nodding her head.) “MR. ROBERTS: Okay, thank you.” Juror C. A. Ledbetter did not respond to counsel’s question. He sat as a juror in the case and signed the verdicts which found the issues in favor of the defendant. In support of their motion for new trial, plaintiffs filed affidavits in which each affi-ant stated as follows: “ . . . that following the jury’s returning of a verdict in the case of Don Shrum Inc., et al, v. Valley Mineral Products Corporation, Cause No. 23,869, he was present in the Courtroom when Juror Ledbetter, who served on the jury in said cause, walked up to defendant’s vice president, Ben Donnell, extended his hand to shake hands and said words to the effect: Ben, how have you been. It’s good to see you. And that the said Vice President Ben Donnell addressed said juror Led-better by his first name and said: We can talk now. And that thereafter [they] engaged in a conversation on first name basis and made reference to their prior acquaintanceship and knowledge of one another’s families.” We note the following applicable statements of law: In Lee v. Baltimore Hotel Co., 345 Mo. 458, 463, 136 S.W.2d 695, 698 (1939), Division No. 1 of this Court said: “The right of trial by jury guaranteed by our Constitution, if it is to be worth anything, must mean, as this court has said, ‘the right to a fair and impartial jury.’ ” In Woodworth v. Kansas City Public Service Company, 274 S.W.2d 264, 270, 271 (Mo.1955), Division No. 1 of this Court said: “ . . . It is the duty of a venireman on voir dire examination to fully, fairly and truthfully answer all questions, so that challenges may be intelligently exercised, and the venireman’s intentional concealment of a material fact may require the granting of a new trial. . . ” In Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 1165, 257 S.W.2d 643, 647 (1953), Division No. 1 of this Court said: “It has been written that the qualification of a juror should be determined before the trial begins; that such qualification is a matter of exception; and that the parties must develop such information and take such exceptions, as they desire to preserve for appellate review, before the jury is sworn. Massman v. Kansas City Public Service Co., Mo.Sup., 119 S.W.2d 833, and cases therein cited; Section 494.050 RSMo 1949, V.A.M.S. An exception is made to this rule so that where it is shown that matters which might establish prejudice or work a disqualification were actually gone into on the voir dire, and false answers were given, or deception otherwise practiced, the court will be permitted to consider the question on the motion for a new trial, either upon oral testimony taken at a hearing on the motion, or by affidavits. Such a situation is closely akin to that when a new trial is sought for newly [69] discovered evidence. The ‘complaining party is not to be left without a remedy for the want of a prior objection and exception when the disqualification of the juror was one which he by due diligence could not have learned sooner.’ Harding v. Fidelity & Casualty Co. of New York, Mo.App., 27 S.W.2d 778, 779; Massman v. Kansas City Public Service Co., supra.” In order to find an intentional concealment on voir dire examination, it must be demonstrated that the juror heard and understood the question asked him. Brady v. Black and White Cab Co., 357 S.W.2d 720, 725 (Mo.App.1962). It must be demonstrated that the juror knew what was being asked him. Ideally, this knowledge on the part of the juror would be shown by his stating at a hearing on a motion for new trial, or by affidavit, that he heard and understood the question. Cf. Beggs v. Universal C. I. T. Credit Corp., 387 S.W.2d 499 (Mo. banc 1965); and Triplett v. St. Louis Public Service Company, 343 S.W.2d 670 (Mo.App.1961). However, as a practical matter, such knowledge ordinarily must be shown by the circumstances in evidence. Circumstantial evidence is usually the only means available of proving knowledge; and knowledge may be proved by circumstantial evidence. In Herrman v. Daffin, 302 S.W.2d 313, 316 (Mo.App.1957), the Court said: “Knowledge may be proved by circumstantial evidence as well as by direct evidence. But the circumstances must be such that the necessary fact may be inferred therefrom and must reasonably follow, so that the conclusion so reached is not the result of guesswork, conjecture or speculation, and such evidence must ‘have a tendency’ to exclude every other reasonable conclusion.” . We hold that when intentional concealment by a juror on voir dire examination is asserted by a party, proof of such concealment may be shown by the circumstances in evidence. The question then narrows in this case to whether the circumstances in evidence show an intentional concealment under the Herrman test. We believe that they do. We must conclude from the interchange counsel had with Mrs. Van Taylor that Juror Ledbetter heard and understood counsel’s question. We believe he intentionally concealed the fact that he was acquainted with Mr. Donnell. Plaintiffs were deprived of an impartial jury. They are entitled to a new trial. We recognize that the granting of a new trial in this type of situation is ordinarily discretionary with the trial court. Lee v. Baltimore Hotel Co., supra. However, in this case where the evidence is uncontra-dicted that Juror Ledbetter was in fact acquainted with Mr. Donnell and it is conclusively demonstrated by the circumstances that he intentionally concealed such acquaintanceship, we must hold the trial court abused its discretion in failing to grant plaintiffs a new trial. The judgment is reversed and cause remanded for new trial. MORGAN, C. J., HENLEY, FINCH and SEILER, JJ., and HOUSER, Special Judge, concur. BARDGETT, J., dissents in separate dissenting opinion filed. RENDLEN, J., not sitting.