Lambard-Hart Loan Co. v. Smiley , 115 Okla. 202 ( 1925 )

This cause was reversed in an opinion by Ray, C., filed September 15, 1925, for the reason that the trial court permitted the jury to take the pleadings to the jury room and to determine therefrom what the issues were. This was the sole question determined by the opinion and is the sole question raised on the petition for rehearing. In view of certain statements made by the trial court and preserved in the record, it is considered proper on this petition for rehearing to supplement the original opinion in order to determine this question of practice in the trial courts.

At page 173B of the record, the trial court stated: "My custom is to permit all pleadings to go to or to be considered by the jury." On the next page the court said: "Gentlemen of the jury, I am going to submit to you the pleadings." Defendant objected and reserved its exception.

The petition in this case covers more than three pages of the printed brief, while the answer and cross-petition covers nearly seven pages thereof. These pleadings were correctly denominated in the original opinion as "voluminous and involved." If a trial judge, trained in construing and determining the meaning and effect of legal instruments, is unable to say what issues are raised by the pleadings in a case and to clearly define such issues, how is a jury, composed of laymen, to be expected to hazard a shrewder guess? Whether an issue of fact is raised by the pleadings, or what issues are so raised, is a question of law for determination by the court, and our statute does not permit a trial court to shift this responsibility to the shoulders of jurors. Comp. Stat. 1921, sec. 532. As was said by this court in Midland Valley R. Co. v. Bailey, 34 Okla. 193 (sp. cit. 198), 124 P. 987:

"The law is fixed, is stable, is not subject to change according to the variable opinions of any particular twelve men, but represents the wider consensus of opinion of the entire people, and it is the peculiar function of the court to know the law and to inform the jury, so that in the exercise of its duty of applying the law to the facts it may have a stable rule of action to aid it in the administration of justice, and the law of this state does not relieve the courts of this duty."

In Myer v. Moon (Kan.) 26 P. 40, the court said:

"The practice of referring the jury to the pleadings in order to determine in whole or in part the issues of the case is not to be commended. It is the province of the court to determine the issues, and state them to the jury, and not leave them to ascertain the effect of the pleadings or the issues which they present."

That same court in the case of Chicago, R.I. P. Ry. Co. v. Martin, 53 P. 463, stated:

"It is said that it is the duty of the court to construe the pleadings, and to state to the jury the issues of fact to be tried by them, and that it is error to send pleadings into the jury room for the jury to read. This contention is sound, but it does not avail the plaintiff in error, for the court instructed the jury fully and clearly as to the issues to be tried, and the record does not show that the pleadings were, in fact, taken by the jury to their room."

In Thompson's Treatise on the Law of Trials (2nd Ed.) vol. 2, sec. 2314, that author states the proper practice thus:

"It is the duty of the court to determine what are the issues, and to state them to the jury, and it is error to refer them to the pleadings to determine the issues, in whole or in part."

And in section 2582, the same author says:

"Properly, the jury have nothing to do with the pleadings, and argument directed to the pleadings is addressed to the court. It is the duty of the court to state the issues, and it is error to refer the jurors to the pleadings to find what the issues are. The pleadings are often drawn in technical language, which might not be correctly understood by persons unlearned in the law, therefore, it would seem on principle, to be a proper rule of practice not to send the pleadings out with the jury."

Pleadings are usually drawn most favorably to the pleader, and the case is rare where the proof supports all allegations fully. Generally they are argumentative and abstruse, rather than succinct and didactic. The result is inevitable that where pleadings are permitted to go to the jury room, arguments, which are proper to be considered only by the court, are vicariously presented to the jury in secret, and the better pleader is apt to present the stronger and more persuasive argument. To require the losing party under such circumstances to show prejudice to his cause resulting therefrom would be to cast on him an insupportable burden and to require of him a legal impossibility. The jury should be kept free from even vicarious intrusion after the cause is submitted.

While this question of practice appears to be here presented to this court directly for the first time, it has been incidentally involved in several earlier cases, and in each instance, though not a decisive question, the practice of sending pleadings to the jury room, or of copying the pleadings verbatim in the instructions, has been disapproved. Independent Cotton Oil Co. v. Beacham,31 Okla. 384, 120 P. 969; Seay v. Plunkett, 44 Okla. 794,145 P. 496; Dane v. Bennett, 51 Okla. 684, 152 P. 347; Schmucker v. Clifton, 62 Okla. 249, 162 P. 1094; Newton v. Allen, 67 Okla. 73, 168 P. 1009.

It follows from what has been said that it is improper practice for a trial court to permit the pleadings in a case to be taken by the jury in its retirement, and where such action by a trial court is objected to and proper exception reserved, prejudicial error results.

For the reasons herein stated, the petition for rehearing should be and is in all things denied.

By the Court: It is so ordered.