National Box Co. v. Bradley , 171 Miss. 15 ( 1934 )

ON SUGGESTION OF ERROR. After the suggestion of error in this case had been considered by the court, appellee was requested to respond thereto, whereupon in addition to the response appellee applied to the trial court, by petition and evidence in support thereof, to correct the court reporter's transcript and to make that record show that in fact no objection was made by appellant to a view of the premises until after the order therefor had been made and the court and jury had made the inspection and returned to the courthouse, or, if previously made, that it was in such a manner that neither the court nor counsel for appellee heard it or knew of it when made. Section 726, Code 1930, furnishes a simple and adequate method for the correction of the court reporter's transcript of the trial proceedings, and if counsel fail to avail of that simple method, a valid excuse should be offered as a predicate for a petition to correct the record after the transcript has been filed in this court. And, in any event, the application for the correction should be made before the submission of the case to this court. Brown v. Sutton, 158 Miss. 73,120 So. 820; Id., 158 Miss. 78, 86, 121 So. 835. But this petition to correct the transcript was not presented in the trial court until the case had been decided by this court. It would be intolerable that applications by either party to correct the record should be entertained after decision by this court; and it has been expressly decided that such applications after decision here are too late. Ross v. McIntyre, 53 Miss. 133; Union Motor Car Co. v. Cartledge, 133 Miss. 318, 333, 97 So. 801. The petition and proceedings to correct the transcript are therefore disregarded, and the suggestion of error will be examined solely on the original record.

Appellant again urges that the great or overwhelming weight of the evidence was against the appellee, and that the motion for a new trial raising that question should have been sustained. It may be that, without the view of the place and premises had by the jury, we would have been inclined to reverse this judgment in response to the above-stated contention of appellant; but we are bound by the rule, as stated in Kress Co. v. Sharp, 156 Miss. 693,126 So. 650, 68 A.L.R. 167, that where there has been a view or inspection of the place or premises by the jury we cannot reverse on the evidence, if there be any substantial testimony, delivered by sworn witnesses in support of the verdict. We have again carefully examined the record, and we cannot properly say that there is no substantial sworn testimony in support of this verdict.

In view of the importance in this case, and in most cases, of the inspection of the place or premises by the jury, as regards a review of the case on the evidence on appeal, and of the unfortunate misunderstanding among counsel as to what actually happened in regard to the objections made or sought to be made against the allowance of the inspection in this case, we deem it desirable that we enter upon some discussion of the proper practice as to views or inspections by the court and jury.

Under section 2066, Code 1930, which is the statute dealing with this subject, the trial court is seldom, if ever, obliged to allow a view of the premises, and it would be a rare case that a refusal by the court so to allow, could successfully be assigned here as error; for the statute expressly places such a refusal in the discretion of the trial court. 1 Thompson on Trials (2 Ed.), sec. 883. Nor is the court bound to allow a view because both parties request it or consent to it. There are the considerations of inconvenience, distance, delay, expenses, and the like, which belong primarily to the court to determine and not to the parties, although a party may be heard to urge these matters in his objection. And because a view when taken very nearly divests the appellate court of its power to review the case on the evidence, a request for a view should never be granted unless it appears reasonably certain that it will be of essential aid, not merely of some aid, to the jury in reaching a correct verdict, and that it is distinctly impracticable and inefficient to present the material elements to the jury by photographs, diagrams, maps, measurements, and the like. Nor should a view be allowed when there have been material changes in the place or premises, as was observed by us in our original opinion, and as was the situation in this case. See the citations 64 C.J., pp. 88, 89.

But in order that error in the trial court, in allowing a view and inspection by the jury, may be availed of on appeal, the proper objection must be made in the trial court and before the court and jury have departed to make the inspection, and in such manner that, in open court and in the hearing of the judge and opposing counsel, they may be made aware of the objection then and there made. The court reporter's transcript shows that counsel for appellant did object to the view when counsel for appellee first requested it, and that the court then refused the request; and the trial part of that transcript shows further that when later the jury requested that they be taken to view the scene of the accident, counsel for appellant again objected and that his objection was overruled and the view allowed by the court. But on the hearing of the motion for a new trial the trial judge made a statement, as also shown by the transcript, in which he recites that when the request was made by the jury, he called counsel for both sides into the courtroom "and told them of the request of the jury and stated that in view of that request (he) would sustain the motion for a view. There was no further objection made to this at that time, but the attorney for the defendant stated privately to the court that he expected to renew his objection." And the trial judge recites the facts in regard to the trip in taking the view, and of the return of the court and jury to the courthouse, and his statement continues as follows: "Promptly upon reassembling the attorney for the defendant dictated into the record his objection to the view which is reflected by the stenographer's notes in this case."

It was not sufficient here that appellant objected when appellee made the request for the view, and that objection cannot automatically be brought forward and made to apply to the later request by the jury, for there a material new element had been brought into the question, in consequence of which counsel for appellant was bound to again object and in open court and in the hearing of the court and of counsel for the other side and before the departure for taking the view, if he intended to continue to insist upon his objection, and to preserve it for review here. We are, therefore, confronted with the necessity to decide whether the court reporter's trial transcript as to the time and manner of the renewal of the objection by appellant is to control or whether the statement made by the trial court upon the motion for a new trial is to prevail.

If this were a new question, we think we would be obliged to say that we must accept here as true the statements of the trial judge of his recollection of the proceedings sought to be reviewed when those statements are positive and definite, as is the case here. The statute above cited, section 726, Code 1930, expressly empowers the trial judge, when errors in the court reporter's transcript are suggested to his attention, to correct them. The trial judge is by the implications of the statute itself placed in a superior station in respect to the court reporter's transcript, and there would be an odd situation if it were otherwise. We think, however, that the rule, as above stated, has already been settled in Gurley v. State, 101 Miss. 190, 57 So. 565; Turner v. State, 121 Miss. 68, 83 So. 404; Humphrey v. Crorow Hardwood Co., 163 Miss. 490, 140 So. 690; so that we must accept as true the statements of the trial judge above quoted.

All the embarrassing misunderstanding and disappointment about this matter could and would have been avoided had the proper practice, in respect to requests for views by the jury, been observed by court and counsel for both sides, and we, therefore, take this as an appropriate occasion, furnished by the state of this record, to add further upon the subject of the proper rules of practice in that regard.

When a party is about to make a request that a view or inspection of the place or premises be had by the court and jury, the party must first request the court to retire the jury. A request that a view or inspection be permitted, should not be made in the presence of the jury, because an objection to the request made in the presence of the jury might prejudice the jury against the objector. As well admitted by counsel for appellee in their brief, "any lawyer of experience in trying jury cases, knows the injury he inflicts upon himself in objecting to a view by the jury." 64 C.J., p. 90. When, without first having the jury retired, such a request is made and in the presence of the jury, the judge may and generally should overrule it — because thus improperly made — and without waiting for an objection from the other side, unless of course the other side immediately join in the request. And when such a request is made improperly in the presence of the jury, and the court does not then and there at once overrule it, because thus improperly made, and the other party does not immediately announce anything as to whether he will or will not join in the request, the judge should, of his own motion, retire the jury, and if he do not, the opposite party must request the retirement, and if upon that request the court still fails to retire the jury and the party then makes his objection to the view, the failure to retire the jury will constitute reversible error, if the evidence be strongly conflicting, whether the order for a view is made or is not made — this because the judge has compelled the party to make his objection in the presence of the jury to his injury as aforementioned. But in order to constitute reversible error, as regards the matter of procedure, the objecting party must (1) make the request for the retirement of the jury, and (2) he must object to the view. The controlling point is that the party must have been obliged, in order to make his objection at all, to make it in the presence of the jury. Until the objecting party has requested the retirement of the jury, any previous failures to conform to the rules of practice above stated will be considered as breaches of propriety but not as reversible error.

In this case the request upon which the court acted in making the order for the view of the place came from members of the jury in the absence of counsel, and while counsel were engaged in preparing the instructions. In such case, the court, upon calling counsel back into the courtroom and acquainting them with the request, should have retired the jury, of the court's own motion, and before requiring counsel to say anything upon the subject; and upon failure of the court to do this, then the duty became incumbent upon counsel, who expected to object, to request the retirement of the jury, in the same manner and with the same attendant results as if the request for the view had been made by the opposite party in the litigation. In other words, whether the request for the view comes from a litigant or from the jury, counsel who expects to object must, in the first place, request the retirement in order to complain for reversal because of a failure to retire the jury, and he must, of course, in the second place and in any event, make his objection to the view or inspection, in open court, in the presence and hearing of the judge and opposing counsel before the court and jury depart for the premises, in default of which the ruling of the trial court thereon cannot be assigned as error.

Finally, appellant insists that the order for the inspection could not be made by the special judge who tried this case, but only by the regular judge. The record shows that the regular judge was disqualified and that a member of the bar was selected by the parties to hear and determine the cause, as is provided by section 737, Code 1930, and as allowed by section 165, Constitution 1890. When, under those sections, a member of the bar presides, he is empowered to rule upon and determine all pertinent questions arising during the trial of the case, Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 912, 113 So. 552, 114 So. 127, and this, of course, includes the power to act upon a request for a view by the jury.

Suggestion of error overruled.