Medeiros v. Udell ( 1938 )

  This is an action on a case for personal injuries. Verdict was
for the defendant. Plaintiff's exceptions present for review the
denial by the trial court of his motion for a new trial upon the
following grounds: 1. that the court erred in allowing the jury
to continue their deliberations after they had requested that the
reporter read certain of the testimony of the plaintiff, which
request was not complied with due to the absence of the reporter;
2. that the jury were guilty of misconduct in their deliberations
in that, against the specific instructions of the court, they
conducted an experiment which was prejudicial to the plaintiff
and which experiment and its result were considered by the jury
in reaching their verdict. The alleged misconduct of the jury was
not called to the attention of the trial court prior to verdict
and then only upon the filing of the motion for a new trial.
  This court of its own motion raised the preliminary question of
whether it should consider the alleged error involving misconduct
of the jury, the movant having failed to show affirmatively by
his motion for a new trial or otherwise that the alleged
misconduct was not known to the defendant's counsel before
verdict.
  The occasion of the alleged misconduct was a view by the jury
of the locus in quo. Neither the trial judge nor counsel were
present, the jury being in the custody of the

clerk under instructions of the court. The trial of the case had
been concluded and the cause submitted to the jury. The jury had
been taken to lunch at 12:03 p.m. and after lunch repaired to the
scene of the accident. After view the jury were returned to the
courthouse and retired to consider their verdict. The exact time
at which the jury returned from the view does not appear. But the
clerk's minutes admit of the inference that it was about 2:30
p.m. The verdict was returned the same day at 8:30 p.m. The
plaintiff in his affidavit filed in support of his motion for a
new trial averred that he had no knowledge of the facts
constituting the alleged misconduct until after the verdict was
returned by the jury. It nowhere appears, however, that his
counsel were equally ignorant. The affidavit of the clerk of the
court who accompanied the jury, filed by defendant in opposition
to the motion, discloses that shortly after the jurors returned
to the courthouse to deliberate upon their verdict he made a
detailed verbal report to the judge who presided at the trial of
what had occurred at the view, including the acts constituting
the alleged misconduct, and recorded the same in his minutes. The
minutes of the court contain a full and complete recitation of
what occurred upon the occasion of the view, including the acts
constituting the alleged misconduct. Their brevity is such that
they were undoubtedly complete prior to verdict.
  It is a general rule of practice that misconduct occurring upon
a trial, whether by the jurors or others, must be brought to the
attention of the court as soon as discovered and unless objected
to, it cannot be relied upon as error upon a motion for a new
trial. (Whallen's Executor v. Moore, 248 Ky. 348, 58 S.W.
[2d] 601, 603, and cases cited.) And, where the misconduct is
known to counsel, he cannot await verdict and then complain.
(Irvine v. Greenway, 220 Ky. 388, 295 S.W. 445, 451.)
Otherwise, it would

be possible for litigants, after learning of misconduct, to take
their chances and if the verdict is against them to thereafter
complain of it. By silence, when the misconduct is known, the
party complaining is estopped to assert error. (McDaniel v.
Morrison, 42 S.W. [2d] [Tex. Civ. App.] 454.) Hence it is that
where alleged misconduct of a jury upon the trial of a cause is
asserted as a ground for a motion of a new trial it is incumbent
upon the movant to affirmatively show that neither he nor his
counsel were advised or had knowledge of the alleged misconduct
prior to verdict. In the instant case there is a showing that the
movant was not advised of the alleged misconduct prior to
verdict. There is no showing however that his counsel were not
advised or had no knowledge thereof prior to verdict. It was
incumbent upon the movant or someone on his behalf to make an
affirmative showing negativing such knowledge on the part of his
counsel. In the absence of such a showing the motion for a new
trial should not have been considered. (Milbourn v. Bowman
Bros. Realty Co., 9 S.W. [2d] [Mo. App.] 664.) It is not enough
that the defendant did not know of the misconduct. If his
attorney knew of the alleged misconduct and failed to call it to
the attention of the court the error if any is waived.
(Mitchell v. Bruening, 139 Ore. 244, 9 Pac. [2d] 811, 814.) A
precedent which we deem analogous is the holding of this court in
the case of Rep. of Haw. v. Hapa, 9 Haw. 622. There, a motion
for a new trial was filed upon the ground, among others, of bias
and prejudice on the part of one of the jurors alleged to have
been unknown to the defendant. As to the sufficiency of the
affidavits in support of a motion for a new trial, this court
held that the defendant must show affirmatively that he had no
knowledge of the alleged bias and prejudice. Obviously the
reference to the defendant refers also to his counsel. Knowledge
on the part of an attorney is imputable to his client.
 
  The other ground of the motion, namely, that the court erred in
allowing the jury to continue their deliberations after they had
requested that the reporter read certain testimony of the
plaintiff, which was not complied with due to the absence of the
reporter, has little to commend it as a ground for setting aside
the verdict in this case.
  The request was communicated to the court at 5:20 p.m. It was
merely that "certain testimony" of Mr. Alfred C. Medeiros be read
to the jury. The portions of the testimony desired or the purpose
of the request do not appear. The official reporter who reported
the evidence of plaintiff was absent and the court immediately
advised the jury through the bailiff that the testimony of the
plaintiff was not then available. Apparently the jury was advised
of the situation. Nevertheless the jury continued with their
deliberations. In the meantime every possible effort was made to
secure the presence of the official reporter who reported the
required testimony but without success. Finally at 8:30 p.m.
while the search for the missing reporter was still in progress
the jury brought in their verdict.
  The presiding judge's explanation of the circumstances is as
follows: "The court was advised at approximately five o'clock
that certain testimony was desired by the jury to be read to them
and the court instructed the clerk to inform the bailiff to pass
the word in to the jury that at the present time, being 5:30 or
thereabouts, the reporter who had taken such testimony was not
then available. The court further, thru its clerk, instituted a
call to be put thru at various places in the city with a view to
locate the reporter whose service it was that took down the
testimony and the search was being continued for the availability
of such evidence by the reporter and no further word came to the
court subsequent to supper, — after the jury had been sent to
supper at six o'clock, — no further

word came from the jury that they could not proceed further
without the testimony. On the contrary the jury continued with
its deliberations and the verdict has now been presented to the
court at the request of the jury itself. * * * There was no
indication from the jury that its deliberations were being
blocked by the absence of such testimony. The court would
certainly have instructed or requested the jury to withhold
further deliberation if they could not proceed without it.
Apparently the jury solved its own difficulty without any
additional instruction or direction of the court as to their
being required to finish the case regardless of that evidence."
  The court did not refuse to have the desired testimony read to
the jury. On the contrary it endeavored to comply with the
request and was engaged in trying to locate the reporter when the
verdict was returned into court. The only thing that the court
could have done, that was not done, was to have forthwith
suspended the deliberations of the jury until the desired
testimony became available. But in our opinion the circumstances
were not such as to require such action on the part of the court.
It does not appear that the jury were in disagreement as to the
testimony given by plaintiff or that they could not arrive at a
verdict because of such disagreement. Whether the subject matter
to which the request related was vital to the issues is unknown.
There was nothing to indicate that the deliberations of the jury
were being obstructed by the absence of the testimony. Apparently
the desire to have the testimony of the plaintiff reread was not
extreme. After the first request no further or additional
requests were made. The jury no doubt concluded to continue their
deliberations without the assistance that the rereading of the
desired testimony might afford. Had the absence of this evidence
prevented further deliberations, the jury no doubt would have
voiced their insistence.
 
  When a jury is deliberating the court reporter who reported the
evidence should remain on call and available in case need is
found for his services. The instant case shows a necessity of the
observance of this rule. But the jury were not entitled to have
this evidence read to them as of right. In the absence of statute
requiring the use of the stenographic notes of the evidence, the
refusal of the trial court to have read to the jury, upon the
request of the latter, notes of the stenographer of testimony
taken upon the trial is not error per se. The disposition of
such request is a matter resting entirely in the sound discretion
of the court. (64 C.J., T. Trial, § 840, p. 1045; Texas  P. Ry.
Co. v. Guidry, 9 S.W. [2d] [Tex. Civ. App.] 284; Isreal v.
Fanchon  Marco, 58 S.W. [2d] [Tex. Civ. App.] 774;
Metropolitan Life Ins. Co. v. Smith, 181 S.E. [Ga. App.] 804,
807; Patterson v. Phillips, 216 Wis. 165, 256 N.W. 624, 627.)
It is only when such discretion is abused that error may be
alleged. Such a case is Knipfer v. Shaw, 210 Wis. 617,
246 N.W. 328. In that case the jury reported that they were unable to
agree and they were compelled to return to the jury room without
being enlightened by the reading of the testimony about which
there existed a real dispute. But that is not the case at bar. As
far as the record shows, the rereading of the desired testimony
was merely to facilitate and shorten the deliberations of the
jury and the official reporter being unavailable the jury
concluded that a verdict could be fairly reached without it. The
presumption is in favor of regularity and not against it. We find
no error in the conduct of the trial judge.
  The exceptions are overruled.