Opinion
Opinion Superseded 279 N.E.2d 879.
Page 880
C. Wendell Martin, Arch N. Bobbitt, Indianapolis, for appellants; Bredell, Martins&sMcTurnan, Ruckelshaus, Bobbitts&s O'Connor, Indianapolis, of counsel.
Edward J. Erpelding, Joe L. Tipton, Indianapolis, for appellee.
WHITE, Judge.
Mr. and Mrs. Conrad, defendants, are appealing a $100,000.00 verdict and judgment rendered against them for personal injuries sustained by a thirteen year old boy in a truck accident on their farm. The evidence most favorable to the plaintiff-appellee, Howard Junior Tomlinson, the injured boy, indicates that he was employed by Mr. Conrad to open gates, to help move cattle, and to help with the fertilizer in corn planting time. He is the step-son of Joe Coomer, a farm hand of the Conrads, and lived with his parents and family in a house on the farm near the field where the accident occurred. On the day of the accident he flagged down a Conrad farm dump truck loaded with corncobs as it was passing his house at noon-time. He told the driver, an employee of the farm, that the farm foreman (who had been at the house a few minutes earlier) had said that the cobs should be dumped before the driver went to his home for lunch. Thereupon the driver backed the truck up the road to the field where the cobs were to be dumped. Plaintiff, Howard, and his eight-year old brother Billy rode on the truck until it stopped at the closed gate of the field. Howard got off and opened the gate and waited to close it after the truck passed through. The truck did not stop again. After Howard closed the gate he ran after the truck and attempted to jump onto the right running board. He fell and was run over by the truck's rear wheel receiving apparently severe injuries, the nature and extent of which are not material to any question raised by this appeal.
Although many of the plaintiff's factual contentions were vigorously disputed by the defendants, we must presume that the jury resolved all evidentiary conflicts in plaintiff's favor. Winkler v. Winkler (1969), Ind., 246 N.E.2d 375, 377; Glen Park Democratic Club v. Kylsa (1966), 139 Ind.App. 393, 404, 213 N.E.2d 812, 819, 7 Ind.Dec. 515, 525.
The complaint named as defendants not only Mr. and Mrs. Conrad, but also the truck driver, Tommy Byington. He is no longer a party because the jury's verdict found for him. The complaint was in two counts, referred to in Indiana rules of pleading prior to January 1970 as legal paragraphs or pleading paragraphs. The gist or gravamen of Paragraph I is that defendants invited plaintiff to ride on the running board of the truck and that he was injured as a proximate result of several specific negligent acts and omissions. Paragraph II alleged that Mr. and Mrs. Conrad were subject to the Employers Liability Act; that plaintiff was their employee, and that Conrads were negligent, both vicariously, through acts and omissions of their truck driver-employee Byington, and directly in that, (a) they failed to maintain their truck in a safe condition, but instead allowed it to be driven when it was not properly equipped; (b) they failed to have the truck licensed under the laws of Indiana when it was used on the highways of the State; (c) they employed an incompetent driver who was not licensed in the State of Indiana and could not read; (d) they employed the plaintiff who was only 13 years of age and incapable of comprehending dangers; (e) they failed to provide plaintiff with a safe place to work; (f) they failed to have the motor equipped with a good muffler; (g) they ordered the plaintiff to ride upon the truck when they knew it was constructed so that a person riding on the running board could fall off and be run over by the rear wheels; with the result that he was injured, etc.
Ind.Ann.Stat. § 2-1006 (Burns 1967), in effect when the case was pleaded and tried, provided: 'In stating in the complaint any cause of action * * * (the plaintiff) may * * * state in separate and distinct paragraphs, consecutively numbered, as many distinct causes of action * * * as * * * (he) may deem * * * (he has).' Supreme Court Rule 1-2 required: 'All affirmative averments in any complaint * * * or paragraph thereof, shall be stated in separate consecutively numbered rhetorical paragraphs * * *.'
Acts 1911, Ch. 88; Ind.Ann.Stat. §§ 40-1101 through 40-1111 (Burns 1965); IC 1971, 22-3-9-1 through 22-3-9-11.
From the jury's having found, in answer to an interrogatory, that plaintiff was Mr. and Mrs. Conrad's employee, the appellants quite reasonably conclude that 'the verdict apparently stands on legal paragraph II of the complaint.'
Appellants contend the trial court committed reversible error, (1) in giving and refusing to give certain instructions to the jury, (2) in refusing to submit certain interrogatories to the jury, and (3) in refusing to declare a mistrial for alleged misconduct of the bailiff in entering the jury room while the jury was deliberating.
We reverse because a majority of the court is of the opinion that error was committed in respect to the jury room incident and in the giving of an instruction which authorized the jury to find that defendants had violated the Compulsory Education Act of 1921.
Acts of 1921, Ch. 132, p. 337, Ind.Ann.Stat. §§ 28-501 et seq. (Burns 1948). As amended since the trial the act is IC 1971, 20-8-8-1 et seq. or Ind.Ann.Stat. §§ 28-5306, et seq. (Burns 1970).
The giving of appellee's instruction No. 42 constituted a holding by the trial court that the provisions of section 22 of the Compulsory Education Act of 1921 were applicable to farm labor. A majority of this court, not including the writer, hold that a consideration of the entire act leads to the inescapable conclusion that the General Assembly did not intend to include any work on a farm in the phrase 'any other occupation dangerous to life or limb'.
At the time of the accident section 22 was cited as Ind.Ann.Stat. § 28-522 (Burns 1948), Ind.Acts 1921, Ch. 132, § 221. It has since been repealed by Ind.Acts 1967, Ch. 217, § 4, and the general prohibition against employing underage children 'in any other occupation dangerous to life or limb' is no longer in the act.
The jury room incident occurred several hours after the jurors had retired to deliberate on their verdict and not long before they announced their agreement. They summoned the bailiff to the jury room. She entered, closed the door and remained with the jury several minutes. When she came out she was carrying several papers. She and the trial judge then went into his office for a few minutes, immediately after which she returned to the jury room carrying papers. The door was again closed and in a few minutes she emerged without the papers. In the meantime the judge had told counsel that the jurors had misplaced a verdict form, but that he would not say which one.
Defendants' counsel immediately went into open court and orally moved for a mistrial, which was denied. Shortly thereafter counsel again observed the bailiff enter and leave the jury room and again he unsuccessfully moved for a mistrial.
In much greater detail than here recited, those facts were set forth in affidavits attached to defendants' motion for new trial. Counter-affidavits of the judge, bailiff and a juror were filed by the plaintiff. From the latter we are satisfied that no jury deliberations took place in the bailiff's presence, that she had no communication with them concerning their deliberations, and that her presence in the jury room had no effect on their verdict. We are also satisfied that the judge's only communication to the jurors, delivered verbally by the bailiff, was the innocuous suggestion that they were in possession of all the necessary verdict forms and that if they had any further question they should come into open court and ask it.
But our complete faith in the integrity and probity of the judge and his bailiff does not warrant our approval of the manner in which they responded to this jury request. To hold that their affidavits have rendered their error harmless could be to license other court attache$s to violate the sanctity of the jury room in pursuit of less innocent objectives. The opportunities bailiffs have to influence juries are too great at best. Courts must be ever vigilant to keep those opportunities at the lowest minimum consistent with practicality.
It is not only necessary that the decisions of judges and juries be freely, fairly and impartially arrived at, but that nothing be allowed to occur which may give to their decision-making process any other appearance. Public confidence in the judiciary is threatened almost as much by reasonable suspicion as by actual proof of wrongdoing. And suspicion often seems most reasonable when proof is most difficult. Particularly is this true in instances in which knowledge of what actually transpired is the exclusive property of those whose conduct is being questioned.
Freedom from improper influence during the course of their deliberation can be achieved by jurors only when their deliberations are completely shielded from the eyes and ears of all other persons. Their communications with each other in their efforts to arrive at a consensus must, therefore, be in secret. But, with respect to communications with persons other than fellow jurors, the need is for an entirely different shield. Publicity, not secrecy, is the shield needed. That need is recognized and provided for in the statute which authorizes the jury to 'request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice, to, the parties or their attorneys.' The information required by the jury in this case was not 'as to any part of the testimony' and may not have been 'as to any point of law', but the fact that these are the only categories of information mentioned in the statute should not lead to the conclusion that other information required by the jurors should be imparted to them in the secrecy of their jury room. The usual practice of bringing the jury into the courtroom in the presence of the parties and counsel to ask whatever question it may have, is obviously the only practice which permits communication without arousing suspicion. It is the only practice we can approve.
IC 1971, 34-1-21-6, formerly Ind.Acts 1881 (Spec.Sess.), Ch. 38, § 384, also Ind.Ann.Stat. § 2-2017 (Burns 1965).
The bailiff should not have entered the jury room. She should have remained at the open door and told the jurors they could request to be brought into open court to ask their question. From that point on she and the trial judge should have followed the statute.
Indiana and out-of-state cases have been cited by each party, but none involve an identical incident. The result we reach here is not as tolerant of well meaning indiscretion as might be justified on authority of some of those cases, but we believe it better suited to modern needs and modern facilities.
In Doles v. State (1884), 97 Ind. 555, for instance, the jury and the bailiff were together during deliberations because there was only one heated room in the courthouse--a primitive condition no modern court need tolerate. Castle v. State (1957), 237 Ind. 83, 86, 143 N.E.2d 570.
Defendants-appellants next complain of the trial court's refusal to give instructions to the jury withdrawing from their consideration specifications of negligence in support of which appellants contend there was no credible evidence of probative value. Since evidence not offered at the prior trial may be received at the next trial we see no point in a detailed analysis to determine which, if any, of these charges were unsupported. If, at the new trial, similar withdrawing instructions are submitted, they should be given in those instances, if any, in which the negligence charged is not supported by any credible evidence of probative value. New York Central Railroad Co. v. Verkins (1954), 125 Ind.App. 320, 122 N.E.2d 141, 122 N.E.2d 738.
Defendants-appellants also complain that several instructions given to the jury at plaintiff-appellee's request permitted the jury to find against defendants on negligence not charged in the complaint. Our examination discloses that there was evidence (as to the admission of which no error is claimed) sufficient to justify the instructions. Whether the negligence was charged in the complaint is irrelevant. Wyler v. Lilly Varnish Co. (Ind.App.1969), 252 N.E.2d 824, 830, 19 Ind.Dec. 510, 518, 255 N.E.2d 123, 20 Ind.Dec. 179.
The trial court did not err in instructing the jury that the Employers Liability Act is applicable to farming. Crist, Inc. v. Whitacre (Ind.App.1970), 258 N.E.2d 165, 21 Ind.Dec. 300, 260 N.E.2d 893, 22 Ind.Dec. 335. There was also sufficient evidence of five or more employees. Nor were defendants' other objections to plaintiff's instruction No. 24 well taken. And no prejudice is shown in refusing to give defendants' instructions 5 and 58. Defendants' objection to plaintiff's instruction No. 68 was not well taken and was not broad enough to cover arguments made in their brief. Furthermore the tendering and giving of defendants' instruction No. 42 waived or cured, or both waived and cured, any possible error in the giving of plaintiff's said instruction. What objections may be made at the next trial we do not attempt to anticipate.
Formerly Ind.Acts 1911, Ch. 88, now IC 1971, 22-3-9, also Ind.Ann.Stat. §§ 40-1101-40-1114.
Interrogatories to the jury having been abolished since this trial, the question of whether interrogatories tendered by defendants should have been submitted is now moot. Trial Rule 49, Indiana Rules of Procedure.
The judgment is reversed and the cause remanded with directions to grant appellants' motion for new trial and for further proceedings not inconsistent with this opinion.
Reversed and remanded.
HOFFMAN, C. J., and SHARP and STATON, JJ., concur.
Our present Indiana Rules of Procedure state, in Trial Rule 8(E)(2), that a complaint 'may set forth two (2) or more statements of a claim * * * alternatively or hypothetically, either in one (1) count * * * or in separate counts * * *.' However, Trial Rule 10(B) reads: 'All averments of a claim * * * shall be made in numbered paragraphs * * *. Each claim founded upon a separate transaction or occurrence * * * may be stated in a separate count * * * whenever a separation facilitates the clear presentation of the matters set forth.'