Opinion
No. 41527.
February 13, 1950. Motion for Rehearing or to Transfer to Banc Overruled, March 13, 1950.
The trial court properly granted a new trial because the trial judge had communicated with the jury through a deputy sheriff as a messenger.
1. JURIES: Evidence: Evidence of Jurors: Competency Not Ruled. No ruling is made whether evidence of jurors as to communications between the trial court and the jury constituted an impeachment of the verdict so as to be incompetent.
2. NEW TRIAL: Trial: Communication with Jury by Messenger: New Trial Properly Granted. The trial court properly granted a new trial because a request of a juror to hear again the evidence of a witness and the denial of the request by the trial judge were made through a deputy sheriff as a messenger instead of calling the jury back into the courtroom and giving the request and answer in open court with counsel for both parties present.
Appeal from Circuit Court of City of St. Louis; Hon. William K. Koerner, Judge.
AFFIRMED.
Salkey Jones and Carroll J. Donohue for appellant.
(1) In sustaining plaintiff's motion for a new trial, the court below erred for the reason that the incident described in ground XIX, in the nature of a communication between the judge and jury, was not and could not in any manner be regarded as prejudicial or material in the determination of the cause and at worst was a mere irregularity or harmless error. Glenn v. Hunt, 25 S.W. 181, 120 Mo. 330; Sullivan v. Union Electric L. P. Co., 56 S.W.2d 97, 331 Mo. 1065; White v. Hasburgh, 124 S.W.2d 560. (2) In considering ground XIX of plaintiff's motion for a new trial, which charged that the jury in rendering its verdict was guided by passion and prejudice, the court erred in hearing and being guided by testimony of three jurors which tended or may have tended to impeach their verdict. Steffen v. Southwestern Bell Tel. Co., 56 S.W.2d 47, 331 Mo. 574; Evans v. Klusmeyer, 256 S.W. 1036, 301 Mo. 352; Woehler v. St. Louis, 114 S.W.2d 985, 342 Mo. 237; Jordan v. St. Joseph Ry., Light, H. P. Co., 73 S.W.2d 205, 335 Mo. 319; McFarland v. Bellows, 49 Mo. 311; Philips v. Stewart, 69 Mo. 149; Clark v. Famous Shoe Clothing Co., 16 Mo. App. 463; State ex rel. v. Gage Bros. Co., 52 Mo. App. 464; Proffer v. Miller, 69 Mo. App. 501; New York Store v. Chapman, 89 Mo. App. 554; Ingram v. Poston, 260 S.W. 773; Reich v. Thompson, 142 S.W.2d 486, 346 Mo. 577; Cook v. Day, 172 S.W.2d 648. (3) The trial court erred in sustaining plaintiff's motion for new trial on the ground assigned, because plaintiff by the conduct of her counsel consented to the procedure adopted by the trial court and waived any right to object thereto, in that plaintiff's counsel absented himself from the court during the jury's deliberations; plaintiff's counsel, on being advised of the jury's inquiry, did not request that action be deferred until his return to court; plaintiff's counsel made no suggestion or request as to procedure to be followed by the court in replying to the jury's inquiry; plaintiff's counsel, though having adequate opportunity and obligation to learn of the procedure adopted by the court, failed to make timely objection. Schonwald v. F. Burkhart Mfg. Co., 202 S.W.2d 7, 356 Mo. 435; Yost v. Union Pacific R. Co., 149 S.W. 577, 245 Mo. 219; Zeibold v. Foster, 24 S.W. 155, 118 Mo. 349; Broome v. Wright, 15 Mo. App. 406. (4) In granting plaintiff's motion for a new trial, the court below grossly abused its discretionary power, because no valid or cognizable basis for such action existed or was shown. Lightfoot v. Kurn, 164 S.W.2d 77; Reaves v. Kramer, 97 S.W.2d 136; O'Bauer v. Katz Drug Co., 49 S.W.2d 1065.
Maurice S. Karner for respondent.
(1) The trial court properly sustained plaintiff's motion for new trial on ground XIX for the reason that the communications which took place between the judge, the deputy sheriff and jurors outside the courtroom and in the absence of counsel were improper. Hartgrove v. Chicago, B. Q.R. Co., 218 S.W.2d 557; Boyd v. Pennewall, 78 S.W.2d 456; Chouteau v. Jupiter Iron Works, 7 S.W. 467. (2) The trial judge acted clearly within his discretion in sustaining plaintiff's motion for new trial. Bailey v. Interstate Automotive, 358 Mo. 1121, 219 S.W.2d 333. (3) The jurors who testified at the hearing of plaintiff's motion for new trial did not impeach their verdict. Wood v. Claussen, 207 S.W.2d 802. (4) The absence of counsel from the courtroom during the time the improper communications took place did not of itself, as appellant contends, cause the act complained of, nor should respondent be prejudiced by her counsel's failure to object at the time of the alleged act. Hartgrove v. Chicago, B. Q.R. Co., 218 S.W.2d 557.
Plaintiff in this action asked judgment for $25,000 as damages against the defendant company for personal injuries sustained in a collision of a car in which she was riding and a streetcar owned by the defendant company.
A trial resulted in a verdict and judgment in favor of the defendant. The trial court granted plaintiff a new trial on the ground that, after the case had been submitted to a jury, the trial court was guilty of an indiscretion in the manner in which it communicated with the jury concerning the jury's request to hear again the evidence of a certain witness. The request made by the jury and the judge's answer thereto were transmitted orally by the deputy sheriff who was in charge of the jury. Defendant appealed from the order granting a new trial.
A hearing was had on the motion for new trial. Three jurors and the deputy sheriff testified at the hearing with reference to what was said by the deputy sheriff to the jury. The evidence shows that the jury asked the deputy sheriff if the evidence of a witness could be read to the jury. The officer reported the matter to the judge. The jury remained in the jury room. The attorney for the defendant agreed that the evidence could be read. The attorney for plaintiff, who was then at his office, was asked over a telephone whether he would consent to granting the jury's request and he refused. The deputy sheriff then returned to the jury room with the information that the evidence of the witness would not be read. There is a dispute as to what the deputy sheriff said. One of the jurors testified the officer informed them that the attorney for the defendant consented but the plaintiff's attorney refused and, therefore, the request would not be granted. The foreman of the jury testified that he was uncertain as to the details of what the officer said but did state that the officer on his first return to the jury room informed them that only one of the lawyers was present and they would have to wait a while. Later the officer returned and stated the request would not be granted.
Appellant insists that the evidence of the jurors should not have been admitted for the reason that a verdict cannot be impeached by evidence of the jurors. That a verdict cannot be so impeached is well settled law in this state. Carlisle v. Tilghmon, 174 S.W.2d 798, l.c. 801 (8, 9), and cases there cited. However, we are not holding that the jurors' evidence, restricted as it was to the communications between the trial court and the jury, constituted impeachment of the verdict. The result on this appeal does not require a ruling on that point. Those interested in the question may read 46 C.J. 352, Sec. 372, and cases there cited. Also see 46 C.J. 349, Sec. 370, and cases cited there, and Mattox v. U.S., 146 U.S. 140.
Granting a new trial for misconduct or indiscretion on part of jurors, lawyers, and a trial judge, occurring prior to the rendition of a verdict, rests largely within the discretion of a trial court. 46 C.J. 410, Sec. 468. Unless abused, the exercise of such discretion will not be disturbed. Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, l.c. 339 (10, 11). There was ample ground in this case to sustain the order granting a new trial. The mere fact that the judge communicated with the jury by messenger, on a matter pertaining to the evidence, even though the messenger was the deputy sheriff in charge of the jury, was sufficient to sustain the court's order.
In the case of Hartgrove v. Chicago B. Q. RR. Co., 358 Mo. 971, 218 S.W.2d 557, l.c. 562, 563, the trial judge and the foreman of the jury discussed the case in the court chambers. The trial court denied a new trial. He prepared a memorandum which will be found in the opinion supra. The court therein stated the foreman wanted to know, in case the verdict was for plaintiff, if the amount could be less than plaintiff claimed. It was a personal injury [462] action. This court reversed and remanded the case for retrial for the reason that the court had conferred with the foreman in chambers.
In the case before us the action of the trial judge was even more indiscreet than that of the judge in the Hartgrove case concerning which this court stated (218 S.W.2d 563):
"How simple it would have been for the trial judge to have assumed the bench and, the twelve jurors being in the jury box and counsel for the parties having been caused to be present, to have asked the foreman to state his question there and then in open court."
In 64 C.J. 1042, Sec. 839, we note the following:
"In accordance with the general rule that all communications between court and jury must be in open court, it is generally held that, if counsel have not consented thereto, it is reversible error for the judge, in the absence of counsel, to go into the jury room and give further instructions, or to send further instruction to the jury room with another."
That has been the general rule in this state for many years. See Chouteau v. Jupiter Iron-Works, 94 Mo. 388, 7 S.W. 467, l.c. 473.
In no other way can a proper record be made of what occurred. The evidence of the jurors given in this case discloses the confusion which naturally follows a failure to observe this rule. This case also demonstrates the wisdom of the rule.
The order of the trial court granting a new trial must be and is hereby affirmed and the cause remanded for retrial. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.