The importance of a fair jury trial has been recognized by Missouri courts. "The right to unbiased and unprejudiced jurors is foundational to the judicial process."1 "It is fundamental that jurors should be thoroughly impartial as between the parties. The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the Constitution."2 "Parties to a civil case are always entitled to a decision based on the honest deliberations of twelve qualified jurors. . . . When even one unqualified juror is seated, the complaining party is entitled to a new trial."3 The United States Supreme Court has recognized, however, that "(a litigant) is entitled to a fair trial but not a perfect one, for there are no perfect trials."4

There has been some confusion in the Missouri appellate court decisions as to whether a civil litigant has the right to a new trial if the trial judge requires the use of a peremptory challenge to remove a juror who should have been removed for cause. This issue was recently addressed in the case of Edley v. O'Brien,5 which held:

When a venireperson makes an equivocal response, an appellate court is justified in making a more thorough review of the challenged juror's qualifications. The discretion lies with the trial court to determine whether a venireperson can be an impartial juror. The determination is a factual one that is to be made by the trial court on the basis of the questions and answers elicited on voir dire, as well as the demeanor and credibility of the venireperson.7

Appellate courts generally defer to the trial court's determination on errors during voir dire because the trial judge can observe the venireperson's demeanor and can consider the venireperson's answers in light of those observations. As such, the trial court is in a far better position to determine a potential juror's qualifications than is the appellate court. Determinations by the trial court on errors during voir dire are overturned only when they are clearly and manifestly wrong and any doubts are to be resolved in favor of the trial court's decision. Mere equivocation is not enough to disqualify a juror. If the challenged venireperson subsequently reassures the court that he can be impartial, the bare possibility of prejudice would not deprive the judge of discretion to seat the venireperson.8

The Supreme Court of Missouri held, in Ray v. Gream,9 that trial courts are given broad discretion to determine whether prospective jurors are qualified; rulings on that issue will not be disturbed on appeal unless they constitute a clear abuse of discretion and a real probability of injury to the complaining party. Ciing Theobald v. St. Louis Transit Co.,10 the Gream Court held that not every opinion of a juror concerning the matter in litigation will operate as a disqualification. To have that effect, it must be such an opinion as will influence his judgment on the consideration of the cause. In Gream, the Court further held that it is proper for the trial court to consider the juror's testimony concerning his or her ability to act impartially and that the self-assessment of prospective jurors that they can set aside their bias is, in most cases, sufficient evidence, in and of itself, to support the trial court's determination that the juror is qualified. Where the juror does not exhibit that degree of bias that would automatically disqualify him from serving, the trial court can appropriately consider the testimony of the juror that he can set aside his stated bias and serve impartially.11

It is axiomatic that the "jury is the sole judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony."12 The appellate "court cannot weigh the evidence to determine whether the jury properly assessed the percentages of fault."13 The appellate court will only determine whether the trial court abused its discretion in overruling the motion for new trial and in entering judgment on the jury's verdict.14 Where the trial court grants a new trial on the basis that the verdict is against the weight of the evidence, appellate courts will decline to assess the "weight of the evidence."15 "In interpreting verdicts, the court should look at the entire record to ascertain the jury's intent, and construe the verdict liberally so that it may be given effect where possible."16

In Steif v. Limpiphiphatn,17 the court upheld a verdict in favor of the physician-defendant and rejected the plaintiff's contention that the verdict was against the weight of the evidence. After reviewing the evidence in the light most favorable to the jury verdict, the court held that, "[u]nder Missouri law, a jury verdict will not be overturned unless there is a complete absence of probative facts to support the verdict."18 Further, whether a verdict "is against the weight of the evidence is for the trial court to determine, not the appellate court. . . . It was plaintiffs' obligation to prove their case to a jury's satisfaction and a jury could return a verdict against plaintiffs even in the absence of any evidence contrary to that produced by plaintiffs."19

In determining whether sufficient evidence supports the verdict, the appellate court considers the evidence and all reasonable inferences therefrom in the light most favorable to the verdict; it is only obliged to determine whether there was evidence from which such verdict could have been reached by a jury composed of reasonable men and women.20 A verdict resulting from the bias or prejudice of the jury, however, cannot stand.21

It "is not the function of an appellate court to pass on the weight of the evidence in a jury case and that is the reason an appellate court will not make a determination of bias and prejudice of the jury on amount of the verdict alone."22 "There must have been some incident or occurrence at the trial, or error committed, of such a nature as to engender bias, passion or prejudice."23 "Unless there is an abuse of discretion, an appellate court may not rule on the weight of the evidence in a jury-tried case because this determination is within the exclusive province of the trial court."24

What transpires during a jury's deliberations cannot be scrutinized because it is an invasion into the sanctity of the jury room.25 In State ex rel. Highway and Transportation Comm'n v. Pracht,26 the landowners appealed a jury award in a condemnation case. Th landowners argued that the award was inadequate and presented affidavits of three jurors who attested to the fact that they were confused when the verdict was under consideration. The court held that the affidavit or testimony of a juror is inadmissible and is not to be received in evidence for the purpose of impeaching the jury's verdict. "Jury deliberation must be guarded to bring finality to the litigation process, and, in addition to the rule precluding a juror's testimony about the jury's deliberation, matters inherent in the verdict are not assailable by affidavit for the purpose of impeaching the verdict."27

A juror's testimony or affidavit may not be used to impeach the verdict as to misconduct inside or outside the jury room, whether before or after the jury is discharged.28 A jury may not impeach its own verdict but a juror can testify or give an affidavit in defense of or to uphold a jury verdict.29

In McPherson v. David,30 a widow brought an action against another motorist involved in an accident that caused her husband's death. The jury returned a verdict for the defendant. After the jury was discharged, the court discovered that an apparently unsigned note had accompanied the verdict form. The note stated: "The jury regrets the unfortunate accident. However, we feel the plaintiff did not prove beyond reasonable doubt that defendant Mr. David was responsible for the wrongful death of Timothy McPherson." The court held that the note could not be used as a basis for impeaching a jury verdict. If verdicts could be set aside for such reason, virtually all litigation would be without conclusion. Also, the juror's mental process is secret to the juror and is incapable of refutation or corroboration. "The law is well settled that a juror may not, over objection, be heard, by testimony or affidavit, to impeach the jury's verdict."31 Contrary to the general rule prohibiting impeachment of a jury verdict, however, where the opposing party permits the introduction of a juror's statement or admission as to juror misconduct, without objection, that party waives all right to complain.32

On claims of juror misconduct, the court will focus on how the misconduct affected the other jurors and whether it prejudicially influenced the verdict. A court "must find that the juror misconduct prejudiced a party before it may declare a mistrial or order a new trial."33 As with the appellate review of other trial court errors, the "appellate court should defer to the lower court's decision unless it substantially appears that the trial court committed error in finding that there was or was not juror misconduct or was or was not prejudicial impact upon the verdict as a result of such misconduct."34

In Stotts v. Meyer,35 the appellant con-tended that a juror's visit to the scene of the accident in issue and communication of his investigations during the jury's deliberations constituted prejudicial misconduct. First, the court found that the juror's conduct did not come within the purview of matters "inherent in the verdict" and that, therefore, the "prohibition against the impeachment of a jury's verdict" was inapplicable in this case.36 In finding that the juror's actions constituted prejudicial misconduct, the Stotts court reversed the trial court's denial of the appellant's motion for new trial and noted that a party is entitled to have its case tried by 12 impartial jurors who "base their decision on the evidence presented in court."37 The court believed that the juror's quest for independent information for the purpose of enabling him to arrive at a decision, and communication of his impressions to the other jurors during deliberations, influenced the verdict to the prejudice of appellant, and was not innocuous and innocent.

It has been held, however, that when a juror obtains relevant information which is not in evidence, a new trial is not warranted unless that information is conflicting with or different from the evidence presented t trial.38 Note-taking by a juror, even though improper, may not always be misconduct requiring reversal.39 Missouri courts have held that a trial court's response to note-taking is discretionary, and where there is no evidence the notes were made known to other jurors and the jury is cautioned to base its decision on the evidence, there is no abuse of discretion in refusing to declare a mistrial.40

Even if the alleged juror misconduct involves "extrinsic evidentiary facts," the affidavit or testimony of a juror is still inadmissible to impeach the jury verdict. In Neighbors v. Wolfson,41 the appellant challenged the jury verdict on the grounds that extrinsic, prejudicial material had been wrongfully considered by the jury in its deliberations. The appellant attached to its post-trial motion affidavits of four jurors stating that one of the jurors, a former insurance adjuster, had brought a booklet into the jury room that discussed one of the key issues deliberated. The trial court refused to conduct a post-trial evidentiary hearing and entered judgment on the jury verdict. In upholding the trial court's decision, the court of appeals refused to allow proof that extrinsic evidentiary facts infiltrated the jury's deliberation to be established by the affidavit or testimony of jurors. In so holding, the court said:

The Wolfson court concluded that "[w]hatever logical or policy defects exist in this rule, it is the established law in Missouri, and we are bound by it."43

The difficulty in impeaching a jury verdict for juror misconduct was highlighted in the recent case of Murray v. Lamont.44 In that case, the appellant claimed that one of the jurors intentionally misrepresented her feelings about the appellant's attorney. On voir dire, the juror stated that appellant's counsel was a "very, very decent lawyer." During deliberations, she appeared to have a different opinion. During the hearing on the appellant's motion for new trial, one of the jurors testified — by way of offer of proof after the testimony was excluded by the court — that, during deliberations, the same juror referred to the appellant's attorney as a "son of a bitch" and that he shouldn't "get a dime." Citing Wingate v. Lester E. Cox Medical Center,45 the court upheld the exclusion of the testimony from the other and stated "[i]t isa well-founded and long-established rule, based on sound public policy, . . . that the affidavit or testimony of a juror is inadmissible and is not to be received in evidence for the purpose of impeaching the verdict of a jury."46

The Murray court also upheld the exclusion of testimony appellant offered from the daughter of the non-disclosing juror who testified — also in an offer of proof — that her mother had stated many times she had been tricked by the appellant's lawyer. Finding that the non-juror's testimony should not be granted greater status than the affidavit or testimony of a juror and that all are inadmissible in a party's attempt to impeach a jury verdict, the court concluded, "[j]ury deliberation must be guarded to bring finality to the litigation process, and in addition to the rule precluding a juror's testimony about the jury's deliberation, matters inherent in the verdict are not assailable by . . . anyone for the purpose of impeaching the verdict."47

In short, although a jury verdict can be attacked on the grounds of juror misconduct, proof of such misconduct must be established by something other than the affidavit or testimony of another juror, if such proof is objected to. Furthermore, even if juror misconduct is properly established, it must be shown that the misconduct prejudiced the verdict before the verdict can be set aside.

The United States Supreme Court analyzed juror non-disclosure in McDonough Power Equipment v. Greenwood.48 There, a member of the jury panel did not respond during voir dire to a question about previous severe injuries suffered by the jurors or members of their immediate family. After a three-week trial, the jury returned a verdict for the defendant. The plaintiffs challenged the verdict on the grounds that their right to exercise peremptory challenges had been prejudiced and that they did not have an impartial jury. (The juror indicated that he did not believe his son's broken leg as a result of an exploding tire was such an injury). The Supreme Court held that to obtain a new trial under these circumstances:

The Supreme Court reversed the court of appeals decision granting a new trial and suggested that the district court hold a hearing under the guidelines established in the opinion.

During recent years, the Missouri appellate courts have wrestled with the issue of juror non-disclosure in numerous cases and have established somewhat different guidelines for appellate review of juror non-disclosure than those pronounced in McDonough Power. Typically, a juror has failed to disclose a prior personal injury or prior litigation in which the juror was involved. Each case involving juror non-disclosure is evaluated on its own facts and the analysis by the courts has focused on whether the disclosure was intentional or unintentional, as well as on other factors. The court in Tobb v. Menorah Medical Ctr.50 analyzed numerous cases on juror non-disclosure and set forth the general principles in a very comprehensive discussion of those cases. The Tobb court held:

The Tobb court further held that the "trial court exercises discretion in determining whether nondisclosure is unintentional or intentional, and it is a question of fact as to whether bias exists."52 Finally, the Tobb court held that the trial court's overruling of the plaintiff's motion for new trial based on nondisclosure by a juror was not error since, even if intentional, the information which the juror failed to disclose was not related, in any way, to the subject of the case.53

The trial court's denial of a new trial on grounds of juror nondisclosure was upheld in Anglim v. Missouri Pac. R.R.54 In Anglim, a juror failed to disclose during voir dire examination her involvement in a federal suit in which she was named as a plaintiff, along with her husband. At the post-trial hearing on defendant's motion for new trial, plaintiff testified that, when questioned about lawsuits during voir dire, the federal court suit never entered her mind and she never thought of it. She further testified that she thought the lawsuit had been filed solly on behalf of her husband and was not aware that she had been named as a plaintiff in a consortium count of the suit. Based on this testimony, the trial court found that the juror's nondisclosure was innocent and tha0t there was no prejudice shown to the defendant by the nondisclosure. In affirming the trial court's decision, the Anglim Court held: "[w]here 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."55 Further, the Court held:

Finally, the Court noted that it afforded great deference to the trial court's determination of credibility "[b]ecause of the greater ability of the trial judge to observe the juror's demeanor both during voir dire and during a post-trial explanation of her nondisclosure," and concluded that the record amply supported the "trial court's finding of an innocent non-disclosure causing no prejudice to defendant."57

In Anuhco, Inc. v. Westinghouse Credit,58 the court held that whether the non-disclosure by a venireperson is intentional or unintentional is within the sound discretion of the trial court, and the trial court's ruling will not be disturbed on appeal absent a showing that the trial court's discretion was abused. The credibility of the juror's subsequent explanation for failing to disclose is also important, and the trial court is uniquely able to observe the juror's response to inquiry. The trial court will be found to have abused its discretion in finding a lack of prejudice from a juror's voir dire non-disclosure only when the appellate court is convinced from a totality of the circumstances that a litigant's right to a fair trial and the integrity of the jury process has been impaired.59 As shown by these cases, the appellate court will usually defer to the trial court's discretion on whether the non-disclosure was intentional and prejudicial.

The Supreme Court of Missouri clarified some of the confusion on juror non-disclosure in Brines By and Through Harlan v. Cibis.60 There, the trial court declined to set aside the jury verdict on the grounds of juror non-disclosure, but the Supreme Court disagreed. The jury panel was asked whether anyone from the panel "is now or has been a defendant in a lawsuit." The juror in question remained silent, even though he had been a defendant in eight prior lawsuits. In post-trial proceedings, the juror acknowledged that he had been sued eight times and that all of the lawsuits were filed within the previous six years. His explanation for remaining silent was that "[i]t just didn't click. It just didn't connect," and the prior lawsuits simply did not "pop into" his head. Although recognizing that it should give great weight to the trial court's finding that the non-disclosure was unintentional, the Supreme Court found that the silence of the juror was unreasonable and that the trial court abused its discretion in finding unintentional non-disclosure. Addressing the defendant's argument that a new trial was not warranted unless prejudice resulting from the juror's non-disclosure was shown, the BrinesCourt held:

The Brines Court further observed that "[t]he fact that a prospective juror has been sued as a defendant or has prosecuted cases as a plaintiff may cause the juror to be predisposed to defendants or to plaintiffs, as the case may be. The possibility of that predisposition makes the questions and answers material."62 The Court concluded that the failure of a juror to disclose eight prior lawsuits was intentional non-disclosure of a material issue and remanded the case for a new trial.

Also, the Brines Court rejected the defendants' argument that the juror's non-disclosure could have been discovered during the trial through the exercise of due diligence and held that "the requirement that litigants challenge jurors when the nondisclosure becomes apparent is sufficient to prevent abuse."63

The Supreme Court of Missouri reaffirmed that non-disclosure by a juror can occur only after a clear question is asked on voir dire in McHaffie v. Bunch.64 Unintentional non-disclosure exists where the experience is insignificant, remote in time or when the venireperson reasonably misunderstands the question. If non-disclosure is unintentional, a new trial is not mandated where the information not disclosed does not bear on the case or on the prospective juror's ability to fairly evaluate the evidence.65 In McHaffie, the jurors were asked whether anyone on the panel was now or in the past had been required to provide care for someone who was seriously ill or seriously injured. They were also asked whether they had to undergo physical, mental, or emotional rehabilitation. A juror failed to disclose that she had cared for her daughter after a car accident and an assault and also did not mention that she had received emotional counseling on one occasion. The Court did not believe that these questions were sufficiently clear as to require the juror to disclose these prior incidences. The Court also commented, "[a]ssuming arguendo, that the questions were clear, the events were sufficiently remote in time as to justify a finding that the nondisclosure was unintentional" and that the events did not color her ability to fairly hear the case.66 Finally, the Court determined that there was no abuse of discretion in the trial court's decision to determine the jury non-disclosure issue without an evidentiary hearing, since affidavits were filed that were sufficient for the court to make a decision.

In Rife v. State Farm Mutual Auto Ins. Co.,67 however, the appellate court held that the trial court abused its discretion in finding that non-disclosure by a juror was unintentional and that no bias or prejudice influenced the verdict. The Rife court found that the juror, charged with nondisclosure, had no right to decide on his own whether or not he would answer the question and, by his decision not to answr, undertook to judge his own qualifications rather than providing the information sought so that the attorneys could make their strikes in an informed manner.68 The court further observed that, by finding the disclosure to be unintentional, the trial court impermissibly placed its stamp of approval on the juror's decision not to answer the question and, in so doing, abused its discretion. Citing Williams by Wilford v. Barnes Hospital,69 the Rife court held:

Finally, the Rife court commented that it was "fully aware that the result in this case may be harsh and that the situation is not one of (plaintiff's) making, but until a better solution is found courts have no option but °to deal harshly with a venireman's disregard for his responsibilities as a potential juror. Only a new trial will preserve inviolate appellant's constitutional entitlement to a fair and impartial jury.'"71

As demonstrated by these cases, juror non-disclosure has presented difficult issues for Missouri courts, which are to be resolved on a case by case basis and on the particular facts of each case. A few principles, however, are clear. First, non-disclosure can occur only after a clear question is asked on voir dire. Second, unintentional non-disclosure does not mandate a new trial where the information concealed does not bear on the case or on the prospective juror's ability to fairly evaluate the evidence. Third, intentional non-disclosure of material information allows the court to presume bias and prejudice and has become tantamount to a per se rule mandating a new trial, even without proof of prejudice. Fourth, a juror's prior litigation experience is considered a material issue. Fifth, when a juror's intentional non-disclosure does not involve a material issue, or the non-disclosure is unintentional, prejudice must be shown.

VI. Inconsistent Verdicts

In Jorgensen v. City of Kansas City,72 the widow of an automobile driver sued the city and a fire truck driver for the wrongful death of her husband. In its verdict, the jury assessed no damages against the two defendants, even though the jury assessed 10% fault to those defendants. This verdict was internally inconsistent and ambiguous. The jury, however, was discharged without objection to the verdict. The court reiterated the mandate of Douglass v. Safire,73 and held that a verdict that is "inconsistent to the point of being self-destructive" must be called to the trial court's attention before the jury is discharged and, if not, is waived. The rationale for this rule is that the trial court must be given the opportunity to correct the error while correction is still possible. The litigant may not place on the trial court the entire burden to protect his interest in a veritable verdict.74

Similarly, in O'Brien v. Mobil Oil Corp.,75 the plaintiff waived his claim of an inconsistent verdict. The jury awarded the plaintiff no actual damages but returned an award for punitive damages. The court refused to accept the verdict and inquired as to what action the parties desired the court to take in light of the inconsistent verdict. Plaintiff's only request was that thejury be polled. The court subsequently discharged the jury. In post-trial motions, the plaintiff asked the court to correct the verdict or to order a new trial because of the inconsistency of the verdict. The court denied the plaintiff's post-trial motions and granted the defendant's motion for judgment notwithstanding the verdict on the issue of punitive damages. The court held that the appellant waived his claim of error arising from an inconsistent verdict where he did not request any action of the trial court prior to the jury being discharged and simply filed a post-trial motion asking for a new trial. The appellant did not request that the jury be returned for further deliberation to clear up the inconsistency in the verdict, but rather waited to raise the point in post-trial motions and on appeal. Without affording the trial court the opportunity to correct any inconsistency in the jury's verdict, appellant's claim of inconsistency was waived.76

When an inconsistent verdict has been timely and properly objected to, there is some uncertainty about how the inconsistency should be treated. In Boone v. Richardson,77 the jury returned a verdict in favor of the plaintiff, but awarded the plaintiff no damages. The appellate court held that the verdict was so contradictory as to be a nullity and ordered a new trial on all issues. The court reasoned that the verdict could not "be fairly resolved into a definite finding for either party."78 Other cases have held that an inconsistent verdict such as this is not a nullity and that a verdict for the plaintiff for zero damages is a verdict for the defendant.79 It does not appear that the Supreme Court of Missouri has expressly adopted either approach.80

In Jenkins v. Revolution Helicopter Corp.,81 the Missouri Court of Appeals for the Western District adopted the reasoning in Boone that an inconsistent verdict is a nullity. In Jenkins, the court held that a jury verdict in favor of the plaintiff with zero damages could not "be fairly resolved into a definite finding for either party," and did not support the entry of judgment for either party.82 If an inconsistent verdict is properly objected to, the trial court should call this to the jury's attention and return the jury for further deliberations to correct its verdict, or to render a new one.83

In reviewing jury verdicts, Missouri appellate courts appear cognizant of the principle that "retrials are burdensome"84 and, not surprisingly, are reluctant to reverse a jury verdict. If the trial court has refused to grant a new trial or change the damages awarded by the jury, it is unlikely that the appellate court will. An appellant attempting to reverse a jury verdict has an onerous burden. If attempting to show that the verdict was excessive or inadequate or not supported by the evidence, the appellant will not be successful without showing a significant trial court error, unless the verdict shocks the conscience of the court and is manifestly unjust. Similarly, if the trial court has not found the juror misconduct or juror non-disclosure to be prejudicial, the appellate court is not likely to do so. Parties are entitled to a fair jury trial, but not a perfect one.

1 Speck v. Abell-Howe Co., 839 S.W.2d 623, 626 (Mo. App. W.D. 1992) (trial courts have broad discretion in determining the qualifications of veniremen).

2 Id., citing Kendall v. Prudential Ins. Co., 327 S.W.2d 174, 177 (Mo. banc 1959).

3 Petry Roofing Supply, Inc. v. Sutton, 839 S.W.2d 337, 341 (Mo. App. E.D. 1992), citing Brines By and Through Harlan v. Cibis, 784 S.W.2d 201, 204 (Mo. App. W.D. 1989).

4 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984).

5 918 S.W.2d 898 (Mo. App. S.D. 1996).

6 Id. at 903, citing Rodgers v. Jackson Co. Orthopedics, 904 S.W.2d 385 (Mo. App. W.D. 1995). In Rodgers v. Jackson County Orthopedics, 904 S.W.2d 385 (Mo.App. W.D. 1995), the court heldthat the mere fact that a litigant, civil or criminal, was erroneously required to use a peremptory strike to remove a juror who should have been stricken for cause does not require the grant of a new trial, so long as all 12 jurors who, in fact, sat on the jury, were qualified. See also Charlton v. Jeffries, 911 S.W.2d 629 (Mo.App. E.D. 1995) (in a civil case with multiple defendants, each defendant does not have the right to three separate peremptory challenges. The defendants must share their three peremptory challenges, even if their interests are adverse); Sommers v. Wood, 895 S.W.2d 622 (Mo.App. E.D. 1995) (in determining the question of the propriety of a ruling upon a challenge for cause, it is improper to consider whether the ruling party struck the venireperson peremptorily or whether the party exhausted his peremptory challenges).

7 Morris v. Spencer, 826 S.W.2d 10 (Mo.App. W.D. 1992). See also Sunset Acres Motel, Inc. v. Jacobs, 336 S.W.2d 473, 479 (Mo. 1960) (where a juror, by some inquiry or voluntary statement has raised a question as to his impartiality, the question becomes essentially one of fact, and primarily this decision rests with the trial court).

8 McClain v. Petkovich, 848 S.W.2d 33 (Mo. App. E.D. 1993).

9 860 S.W.2d 325 (Mo. banc 1993).

10 90 S.W.354 (Mo. 1905).

11 860 S.W.2d at 327. See also Savant v. Lincoln Eng'g, 899 S.W.2d 120 (Mo. App. E.D. 1995) (not all business or personal relationships between a venireperson and a party to the action warrant disqualification) and Rhodus v. Wheeler, 927 S.W.2d 433 (Mo. App. W.D. 1996) (striking a venireperson for cause is within the trial court's discretion and will not be disturbed on appeal unless it constitutes a clear abuse of discretion and a real probability of injury to the complaining party).

12 Georgescu v. KMart Corp., 813 S.W.2d 298, 299 (Mo. banc 1991), and Lewis v. Envirotech Corp., 674 S.W.2d 105, 111 (Mo. App. E.D. 1984). See also Havel v. Diebler, 836 S.W.2d 501 (Mo. App. W.D. 1992), and Ryburn v. General Heating & Cooling Co., 887 S.W.2d 604 (Mo. App. W.D. 1994).

13 Stevens v. Kliethermes, 811 S.W.2d 447, 450 (Mo. App. W.D. 1991). See also Veach v. Chicago & NorthWestern Trans., Co., 719 S.W.2d 767, 769 (Mo. banc 1986).

14 Clark v. Quality Dairy Co., 400 S.W.2d 78, 81 (Mo. 1966).

15 Veach v. Chicago & NorthWestern Trans., Co., 719 S.W.2d at 769.

16 White v. Otten, 810 S.W.2d 704, 705 (Mo. App. E.D. 1991).

17 814 S.W.2d 695 (Mo. App. E.D. 1991).

18 Id. at 697. See also Treon v. Hayes, 721 S.W.2d 789, 791 (Mo. App. W.D. 1986), Smith v. Mo. Highway and Transp. Comm., 826 S.W.2d 41 (Mo. App. W.D. 1992), Massey-Ferguson Credit Corp. v. Black, 764 S.W.2d 137, 145 (Mo. App. E.D. 1989), Mills v. Crawford, 822 S.W.2d 548, 549 (Mo. App. S.D. 1992), and Minden v. Otis Elevator Co., 793 S.W.2d 461, 462 (Mo. App. E.D. 1990).

19 Id. at 698. See also Marshall v. Edlin, 690 S.W.2d 477 (Mo. App. W.D. 1985), Lenhard v. Davis, 841 S.W.2d 295 (Mo. App. E.D. 1992), and Mar-Kay Plastics v. Alco Standard Corp., 825 S.W.2d 381 (Mo. App. W.D. 1992).

20 Tate v. Golden Rule Ins. Co., 859 S.W.2d 831, 834 (Mo. App. W.D. 1993).

21 See Means v. Sears, Roebuck and Co., 550 S.W.2d 780, 788 (Mo. banc 1977), and Artstein v. Pallo, 388 S.W.2d 877, 882 (Mo. banc 1965). See also Riley v. L.J. Schuster Co., 844 S.W.2d 521 (Mo. App. E.D. 1992) (Trial court's finding that verdict was excessive affirmed. Verdicts resulting from jury bias or prejudice cannot stand. Where passion, prejudice or misconduct on the part of the jury affects the trial of one issue, the judgment and verdict must be set aside entirely and a new trial granted on all issues); Faust v. Associated Eng'g, 854 S.W.2d 537, 539 (Mo. App. E.D. 1993) (in cases involving bias and prejudice on the part of the jury, a new trial on all counts is required, because juror bias and prejudice taints the entire verdict); and Hawkins v. Cockroft, 848 S.W.2d 622 (Mo. App. S.D. 1993) (where passion, prejudice or misconduct on the part of the jury affects the trial of one issue, the judgmnt and verdict must be set aside entirely and a new trial granted on all issues even though the plaintiff moves for a trial on the issue of damages only, citing Artstein v. Pallo, supra.)

22 Reynolds v. Arnold, 443 S.W.2d 793 (Mo. 1969).

23 Id. at 801. See Nussbaum v. Kansas City Stock Yards Co., 359 S.W.2d 335, 341 (Mo. 1962). See also Larabee v. Washington, 793 S.W.2d 357, 359 (Mo. App. W.D. 1990), Skadal v. Brown, 351 S.W.2d 684, 690 (Mo. 1961), Fisher v. McIlroy, 739 S.W.2d 577, 581 (Mo. App. E.D. 1987), and Mullen v. Dayringer, 705 S.W.2d 531, 536 (Mo. App. W.D. 1985).

24 White v. Otten, 810 S.W.2d 704, 705 (Mo. App. E.D. 1991), citing Strickner v. Brown, 491 S.W.2d 253, 255 (Mo. 1973), and Dennis v. St. Louis Bd. of Educ., 809 S.W.2d 20, 21 (Mo. App. E.D. 1991). See Interstate Petroleum v. F & B Invs., 816 S.W.2d 263, 267 (Mo. App. S.D. 1991) (whether a jury verdict is against the weight of the evidence is a question for the trial court alone. Appellate courts do not weigh the evidence in a case tried before a jury). See also Robinson v. Empiregas of Hartville, 906 S.W.2d 829 (Mo. App. S.D. 1995).

25 Gardner v. Reynolds, 775 S.W.2d at 173, 177 (Mo. App. W.D. 1989). See State v. Babb, 680 S.W.2d 150 (Mo. banc 1984). See also St. Louis County v. Pennington, 830 S.W.2d 553 (Mo. App. E.D. 1992) (there is a right to poll the jury in a civil case. It is improper for counsel to inquire of the jury how it reached the verdict during the poll).

26 801 S.W.2d 90 (Mo. App. E.D. 1990).

27 Id. at 93, citing Williams Carver Co. v. Poos Bros., Inc., 778 S.W.2d 684, 688 (Mo. App. W.D. 1989).

28 State ex rel. State Highway v. Ball-win Plaza, 474 S.W.2d 842, 848 (Mo. 1971). See McDaniel v. Lovelace, 439 S.W.2d 906, 909 (Mo. 1969); Gardner v. Reynolds, 775 S.W.2d at 177; Smugala v. Campana, 404 S.W.2d 713, 717 (Mo. 1966); Cook v. Kansas City, 214 S.W.2d 430, 433 (Mo. 1948); Woehler v. City of St. Louis, 114 S.W.2d 985 (Mo. 1938); Reed v. Sale Memorial Hosp. and Clinic, 741 S.W.2d 819, 824 (Mo. App. S.D. 1987); Romandel v. Kansas City Pub. Serv. Co., 254 S.W.2d 585, 595 (Mo. 1953); Wingate v. Lester E. Cox Med. Ctr., 853 S.W.2d 912, 916 (Mo. banc. 1993); Jones v. Wahlic, 667 S.W.2d 729, 731 (Mo. App. E.D. 1984); and Shearin v. Fletcher/Mayo/ Assocs., 687 S.W.2d 198, 203 (Mo. App. W.D. 1984). See also Stotts v. Meyer, 822 S.W.2d 887, 889 (Mo. App. E.D. 1991) (this rule, known as the Mansfield rule and adopted in most jurisdictions, is based on public policy grounds that jurors speak through their verdict and it is infinitely better that the irregularities, which undoubtedly sometimes occur in the jury room, should be tolerated rather than throw open the doors and allow every disappointed party to penetrate its secrets).

29 Washburn v. Grundy Elec. Coop., 804 S.W.2d 424, 430 (Mo. App. W.D. 1991). See also Baumle v. Smith, 420 S.W.2d 341 (Mo. 1967), and Chrum v. St. Louis Pub. Serv. Co., 242 S.W.2d 54, 56 (Mo. 1951).

30 805 S.W.2d 260 (Mo. App. W.D. 1991).

31 Id. at 262-63.

32 Milburn v. Robison, 110 S.W. 598, 600 (Mo. App. W.D. 1908), Thorn v. Cross, 201 S.W.2d 492, 497 (Mo. App. E.D. 1947), Shearin v. Fletcher/Mayo/Assocs., 687 S.W.2d 198, 203 (Mo. App. W.D. 1984), Douglass v. Missouri Cafeteria, Inc., 532 S.W.2d 811 (Mo. App. E.D. 1975).

33 Stotts v. Meyer, 822 S.W.2d 887, 890 (Mo. App. E.D. 1991), citing Rogers v. Steuermann, 552 S.W.2d 293, 295 (Mo. App. W.D. 1977).

34 Id. at 891. See also Middleton v. Kansas City Pub. Serv. Co., 152 S.W.2d 154, 157 (Mo. 1941).

35 822 S.W.2d 887 (Mo. App. E.D. 1991).

36 Id. at 889-90.

37 Id. at 891.

38 Tobb v. Menorah Med. Ctr., 825 S.W.2d 638, 641 (Mo. App. W.D. 1992). See also Consolidated School Dist. No. 3, Grain Valley v. West Mo. Power Co., 46 S.W.2d 174, 180 (Mo. 1932).

39 Supreme Court Rule 69.03, effective January 1, 1997, states:

RULE 69.03 JUROR NOTE-TAKING

If the court allows juror note-taking, the court shall supply each juror with notebooks and pencils. Jurors shall not have their notes during recesses but may use their notes during deliberations. The court shall collect all juror notes immediately before discharge of the jury. After the jury is discharged, the court shall destroy the notes promptly without permitting their review by the court or any other person. Juror notes shall not be used to impeach a verdict.

40 Tobb v. Menorah Med. Ctr., 825 S.W.2d 638, 641 (Mo. App. W.D. 1992). See also Green v. Lutheran Charities Ass'n, 746 S.W.2d 154, 157 (Mo. App. E.D. 1988) (the granting of a new trial on grounds of juror misconduct is within the sound discretion of the trial court; the court's ruling will not be disturbed absent a showing of abuse of that discretion); Berry v. Allgood, 672 S.W.2d 74, 78 (Mo. banc 1984); Beste v. Tadlock, 565 S.W.2d 789, 791 (Mo. App. E.D. 1978).

41 926 S.W.2d 35 (Mo. App. E.D. 1996).

42 Id. at 37. (Extrinsic evidentiary facts enter a jury's deliberations when, for example, a juror visits an accident scene without the court's authorization and then shares his observations with his fellow jurors, see Stotts, at 890-91, or when a juror brings a newspaper into the jury room and reads an article from it to the venire. See U.S. v. Thomas, 463 F.2d 1061 (7th Cir. 1972)).

43 Id. at 38.

44 931 S.W.2d 899 (Mo. App. S.D. 1996).

45 853 S.W.2d 912, 916 (Mo. banc 1993).

46 931 S.W.2d at 903. The Murray court believed that Wingate v. Lester E. Cox Medical Ctr. overruled both City of Flat River v. Edgar, 412 S.W.2d 537 (Mo. App. E.D. 1967), and Sadlon v. Richardson, 382 S.W.2d 9 (Mo. App. E.D. 1964).

47 Id., citing Williams Carver Co. v. Poos Bros., Inc., 778 S.W.2d 684, 688 (Mo. App. W.D. 1989).

48 464 U.S. 548 (1984).

49 464 U.S. at 556.

50 825 S.W.2d 638 (Mo. App. W.D. 1992).

51 Id. at 642-3. See also Wingate v. Lester E. Cox Med. Ctr., 853 S.W.2d 912 (Mo. banc 1993) (juror nondisclosure occurs only after a party asks a clear question. The determination of nondisclosure is left to the discretion of the trial judge whose ruling is disturbed only by showing abuse of discretion) and Murray v. Lamont, supra. A litigant is entitled to a full panel of qualified jurors before making peremptory challenges. A qualified juror is one who is totally disinterested and wholly unprejudiced. See Ray v. Gream, 860 S. W. 2d 325 (Mo. banc 1993), Golden v. Chipman, 536 S.W.2d 761 (Mo. App. E.D. 1976), and Theobald v. St. Louis Transit Co., 90 S.W. 354 (Mo. 1905).

52 Id. at 643. See also Moore v. Jack-son, 812 S.W.2d 240, 244 (Mo. App. E.D. 1991) (trial court did not abuse its discretion in granting new trial on grounds of intentional nondisclosure by a juror. Bias and prejudice may be, but is not required to be, inferred from intentional nondisclosure); Gillespie by Gillespie v. Goedecke, 782 S.W.2d 467 (Mo. App. W.D. 1990) (intentional concealment has become tantamount to a per se rule mandating a new trial); Midwest Materials v. Village Development, 806 S.W.2d 477 (Mo. App. S.D. 1991) (determination of prejudice from unintentional non-disclosure by a juror is a finding to be made by the trial court, to be disturbed on appeal only for abuse of discretion); Gassen v. Woy, 785 S.W.2d 601 (Mo. App. W.D. 1990) (trial court's determination of whether concealment by juror is intentional or unintentional is left to the sound discretion of the trial judge and will only be overturned on appeal when the appellate court is convinced from a totality of the circumstances that the right to a fair trial and the integrity of the jury process has been impaired); Penrod v. Holiday Inns, Inc., 785 S.W.2d 321 (Mo. App. E.D. 1990) (if non-disclosure by a juror is unintentional, the appellant has the burden of proving prejudice); Wood v. Kriegshauser, 851 S.W.2d 574 (Mo. App. E.D. 1993) (the determination of whether non-disclosure is intentional or unintentional is left to the sound discretion of the trial court); Hawkins v. Cockroft, 848 S.W.2d 622, 626 (Mo. App. S.D. 1993) (appellate court upheld trial court's granting of new trial on finding that non-disclosures by two jurors were intentional and prejudicial. A prospective juror is not the judge of his own qualifications. A finding of intentional concealment is tantamount to a per se rule mandating a new trial).

53 Id. at 644.

54 832 S.W.2d 298 (Mo. banc 1992).

55 Id. at 306.

56 Id.

57 Id. at 307. See also Farm Credit Servs. v. Slaughter, 850 S.W.2d 433 (Mo. App. W.D. 1993) (appellate court upheld trial court's refusal of new trial on grounds of juror non-disclosure. To obtain a new trial on the grounds of juror non-disclosure, the moving party must show more than the existence of disqualifying information; that party must show that, when questioned, the juror knew about the information solicited, and that the juror conceded or failed to reveal his knowledge).

In Beeks v. Hierholzer, 831 S.W.2d 261 (Mo. App. W.D. 1992), the appellate court also upheld that trial court's finding that non-disclosures by jurors during voir dire did not have a prejudicial impact. In this case, the appellant alleged that four jurors intentionally failed to disclose material facts concerning their involvement in prior litigation during the voir dire examination. Before analyzing each instance of non-disclosure by the four jurors, the court reviewed recent Missouri cases addressing non-disclosure and held:

There are two types of non-disclosure, intentional and unintentional. Intentional non-disclosure occurs where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and where it develops that the prospective juror actually remembers the experience or that it was of such significance the juror's purported forgetfulness is unreasonable. . . If a juror intentionally withholds material information requested on voir dire, the factfinder may infer bias and prejudice from such concealment, but it is not required to do so. Moore v. Jackson, 812 S.W.2d 240, 244 (Mo.App. 1991). Unintentional non-disclosure exists where the experience forgotten was insignificant or remote in time or where the venireperson reasonably misunderstands the question posed. Williams, 736 S.W.2d at 36. Unintentional failure to disclose information does not necessarily show prejudice on the part of the juror. Id.

The Beeks court noted that this action was for medical negligence resulting in a death and observed that the "non-disclosures of the four jurors did not relate to a wrongful death claim, personal injury or even remotely involve the medical profession." The court also held that, "[j]uror non-disclosure claims depend on their own facts and hinge on the ability of the trial court to gauge the demeanor and credibility of witnesses regarding whether the non-disclosure was intended and whether to infer bias and prejudice." Finally, in affirming the judgment of the trial court, the Beeks court held:

The questions posed during voir dire would not necessarily alert a lay peson to disclose information concerning his or her financial difficulties. The questions focused primarily on claims involving personal injury and workers compensation. In any event, in light of the totality of the circumstances, we cannot say the non-disclosures had any prejudicial impact appellants' right to a fair trial or on counsel's ability to make an informed peremptory challenge of the venirepersons. There is no abuse of discretion in the trial court's finding.

As discussed herein, to the extent the principles enunciated in Beeks are inconsistent with Brines v. Cibis, it should not be followed.

58 883 S.W.2d 910 (Mo. App. W.D. 1994).

59 Id. at 91.

60 882 S.W.2d 138 (Mo.banc 1994).

61 Id. at 140.

62 Id. (In his dissent, Judge Holstein stated that the determination of whether the non-disclosure was intentional or unintentional lied within the sound discretion of the trial court. Given the difficulty the average person has understanding the legal system, he was not willing to say that the trial court's choice of believing the juror's testimony shocked his sense of justice. He was also not able to find that the juror's prior contact with the court system was material to the outcome of the case).

63 Id.

64 891 S.W.2d 822 (Mo. banc 1995).

65 Id. at 829, citing Brines v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994), and Williams by Wilford v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo. banc 1987).

66 Id. at 830.

67 833 S.W.2d 42 (Mo. App. W.D. 1992).

68 Id. at 43.

69 736 S.W.2d 33 (Mo. banc 1987).

70 833 S.W.2d 42, 44 (Mo. App. W.D. 1992).

71 Id. See also Groves v. Ketcherside, 939 S.W.2d 393 (Mo. App. W.D. 1997) (appellate court reversed trial court and remanded the case for a new trial on the grounds that the failure of a juror to disclose during voir dire his wife's death and a subsequent wrongful death suit 15 years earlier was prejudicial error. The question was not vague and the failure of the juror to disclose this out of forgetfulness taxed the court's credulity).

72 725 S.W.2d 98 (Mo. App. W.D. 1987).

73 712 S.W.2d 373 (Mo. banc 1986).

74 725 S.W.2d at 103-04. See also Chas. Grosse v. Cass Bank & Trust Co., 925 S.W.2d 208, 210 (Mo. App. E.D. 1996).

75 749 S.W.2d 457 (Mo. App. E.D. 1988).

76 Id. at 458. See also Holmes v. Drakey, 759 S.W.2d 610, 611 (Mo. App. E.D. 1988).

77 388 S.W.2d 68 (Mo. App. S.D. 1965).

78 Id. at 76. See also Porter v. Mallett, 596 S.W.2d 451 (Mo. App. E.D. 1980), and Pietrowski v. Mykins, 498 S.W.2d 572 (Mo. App. E.D. 1973).

79 See Haley v. Byers Transp. Co., 394 S.W.2d 412, 416 (Mo. 1965).

80 See Campbell v. Kelley, 719 S.W.2d 769 (Mo. banc 1986); Cook v. Jones, 887 S.W.2d 740 (Mo. App. S.D. 1994), and White v. Otten, 810 S.W.2d 704 (Mo. App. E.D. 1991).

81 925 S.W.2d 939 (Mo. App. W.D. 1996).

82 Id. at 943, citing Robinson v. River-side Concrete, Inc., 544 S.W.2d 865, 873 (Mo. App. W.D. 1976), and Boone v. Richardson, supra.

83 Id., citing Thorne v. Thorne, 350 S.W.2d 754, 757-58 (Mo. 1961).

84 Fowler v. Park Corp., 673 S.W.2d 749 (Mo. banc 1984). See Lewis v. Wahl, 842 S.W.2d 82, 85 (Mo. banc 1992) (by both statute and rule, an appellate court is not to reverse a judgment unless it believes the error committed by the trial court against the appellant materially affected the merits of the action. Section 512.160.2; Rule 84.13(b)). See also McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984) (trials are costly, not only for the parties, but also for jurors and for society. It seems doubtful that our judicial system would have the resources to provide litigants with perfect trials, were they possible, and still keep abreast of its constantly increasing caseload).

© 1997, W. Dudley McCarter