Banks v. Village Enterprises12/5/2000
oper, and that counsel for Mr. & Mrs. Banks had, in fact, asked other questions after the insurance question.
On January 29, 1999, the jury returned a verdict in favor of Mr. & Mrs. Banks. The jury assessed 90% fault to KFC, and awarded $150,000 to Mr. Banks and $50,000 to Mrs. Banks. The court entered judgment in accordance with the jury's verdict on February 9, 1999, awarding $135,000 to Mr. Banks, and $45,000 to Mrs. Banks.
In its motion for new trial KFC alleged, in pertinent part, that jurors Leppin, Thomas, Brantnor, and Bagley failed to disclose relevant information in response to questions on voir dire, and that this resulted in prejudice to KFC. Further, it alleged that the trial court erred in refusing to grant a mistrial due to what it claimed was the improper timing, wording, and number of "insurance questions" posed by counsel for the Banks during voir dire. Finally, KFC alleged that the trial court erred in allowing the KFC restaurant's assistant shift manager, Ms. Chowning, to testify, over objection, that she had told Mr. Banks that the company would probably cover his medical bills incurred from the choking incident. On May 11, 1999, the trial court entered an order overruling KFC's motion for new trial. This appeal follows.
II. VOIR DIRE NONDISCLOSURES
In its first point on appeal, KFC contends that it should have been granted a new trial because several jurors failed to disclose relevant, requested information sought during voir dire and that, as a result, it suffered prejudice. Specifically, KFC contends that Juror Marilee Leppin failed to disclose that she has a family member who suffered a choking incident that resulted in a mental disorder; that Juror Phillip Bagley failed to disclose that his in-laws were acquainted with the plaintiffs, Mr. and Mrs. Banks; and that Jurors Margaret Thomas, Phyllis Brantnor and Marilee Leppin failed to disclose that members of their families suffered from mental disorders.
The constitutional right to a fair and impartial jury dictates that, in the trial of a cause, " oth parties are entitled to unbiased jurors whose experiences, even innocently and reasonably undisclosed, will not prejudice the resolution of the cause." Wemott v. Tonkens, 26 S.W. 3d 303, 307 (Mo. App. W.D. 2000). To this end, " uring the voir dire examination, each juror has the duty to fully, fairly and truthfully answer each question asked so that deter-min-ations may be made about each juror's qualifications and counsel may make informed challenges." Id. Accordingly, a prospective juror's failure to disclose material information during voir dire -- upon a showing that such failure also resulted in bias and prejudice to the complaining party -- will mandate a new trial. Williams By and Through Wilford v. Barnes Hosp., 736 S.W.2d 33, 37 (Mo. banc 1987).
In determining whether juror non-disclosure of information is prejudicial, the court must first determine whether the nondisclosure was intentional or unintentional. See, e.g., Williams, 736 S.W.2d at 36; Brines By and Through Harlan v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). "Intentional nondisclosure occurs: 1) where there exists no reasonable inability to comp-re-hend 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 his purported forgetfulness is unreasonable." Wemott, 26 S.W. 3d at 307, quoting, Williams, 736 S.W.2d at 36. Unin-ten-tional nondisclosure, rather, exists where, for example, "the experience forgotten was insignificant or remote in time, or where the venire man reasonably misunderstands the que
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