Opinion
15173
December 3, 1940.
Before HENDERSON, J., Marlboro, May, 1940. Order affirmed.
Action by N.B. Baroody against J.L. Anderson and others, co-partners trading and doing business as J.L. Anderson Company and/or Palmetto Brick Company, and others, for damages growing out of truck collision. From an order granting a motion for a new trial, the defendants appeal.
The order of Judge Henderson follows:
This is a motion by the plaintiff for a new trial of a case which was tried at the April, 1940, term of the Court of Common Pleas for Marlboro County.
The first ground of the motion is: "That the verdict of the jury is entirely against the preponderance of the testimony, and could only be the result of passion or prejudice or a misunderstanding of the issues involved."
The testimony in the case presented sharp issues of fact, and was fully and ably argued to the jury by counsel for both sides. With this direct conflict in the evidence, I think that the findings of the jury as to the facts should not be disturbed. There was ample evidence to justify a verdict for either the plaintiff or the defendants. The credibility of the witnesses is a matter for the determination of the jury.
I am convinced that the verdict was not the result of passion or prejudice, as there was nothing in the course of the trial evidencing in the slightest degree any passion or prejudice.
This ground of the motion is accordingly overruled.
The other three grounds present a much more serious question. These grounds are:
"That the affidavits filed in connection with the motion for new trial conclusively show that the jury upon the scene of the accident contrary to the instructions of the trial Judge and without the knowledge of the attorneys for the plaintiff, made detailed experiments with means and instrumentalities and vehicle or vehicles without authority of the Court, which represented the taking of testimony outside of the Court and under different conditions from those which prevailed on the date of the accident.
"That the experiments shown by the attached affidavits to have been made upon the scene of the accident represented the taking of testimony outside of the Court from parties who were not sworn.
"That the experiments shown to have been made were without the consent or approval of the Court, without the knowledge of the attorney for plaintiff, and that the attorneys for plaintiff were not afforded an opportunity to make an argument to the jury based upon the experiments made at the scene of the accident."
The case involves the head-on collision of two trucks. Shortly before the accident the Baroody truck had pulled off the paved portion of the road in order to stop at a filling station, on its left-hand side of the highway.
The plaintiff contended that the driver of his truck had entered the highway, had driven over to the right-hand side, and had straightened out, when the Anderson truck, in overtaking and attempting to pass the truck of the Cheraw Brick Company, on a curve, and while on its wrong side of the highway, had negligently and willfully run into the truck of the plaintiff.
The defendants, on the other hand, contended that their truck had gone around the curve before attempting to overtake and pass the truck of the Cheraw Brick Company, and that the driver of the Baroody truck was negligent and willful in driving onto the highway in the face of defendants' on-coming truck.
It is apparent, then, that the speed of the Anderson truck, the moment the Baroody driver could first see it coming around the curve, and the precise location of the Baroody truck at the instant of the collision, were points of the utmost importance for the determination of the facts by the jury.
At the conclusion of the testimony, and before the arguments of counsel, upon motion of the plaintiff's attorneys, the jury was sent to view the scene of the accident, in charge of the sheriff of Marlboro County.
The affidavits filed with me show that the jury, while at the scene, directed the sheriff to go up around the curve ir his automobile and to drive back around the curve at the rate of 35 miles per hour, and that this was done by the sheriff, the jury standing at the filling station in the position the Baroody truck was supposedly in just before the collision, and observing the car approaching them from around the curve.
I think that it is clearly the law that trials must be conducted in open Court; that witnesses must be sworn and must testify here; and that no testimony may be taken outside the Court room.
Section 643 of the Code authorizes the sending of the jury to view the scene. Such a view is not regarded as the taking of evidence. The purpose is to throw light upon the testimony in the record, and to enable the jury to understand the evidence already taken in the Court room.
The conducting of any experiment by the jury, amounting to the taking of testimony by them outside of the Court room without the knowledge or consent of counsel, and allowing counsel no opportunity to argue to the jury the inferences to be drawn from such experiment, is, of course, improper.
In the case of Ralph v. Southern Railway Company, 160 S.C. 229, 158 S.E., 409, 410, the presiding Judge, during the trial, visited and inspected the place of the collision. The Court said:
"The cardinal question for our determination is: Was it error for the presiding Judge to visit and inspect the crossing, the scene of the collision, without notice to counsel, or parties, and so without their consent, and without the presence of the jury, and to decide the motion for new trial without giving counsel opportunity to argue the evidence he had obtained upon his inspection of the locus, and by predicating his refusal of the motion for new trial, in part at least, on information so obtained by his personal view of the locus?
"It is the boast of our Anglo-Saxon system of jurisprudence that trials in our Courts of law are conducted under established rules of procedure which insure a fair and open trial, where everything is done in the open, the jurors are drawn and sworn in open Court, the witnesses are sworn and testify in open Court, the Judge's rulings and decisions are made in open Court, and everything done is made of record. Litigants are guaranteed the right to be heard by counsel or in person at every stage of the trial and upon every phase of it. So jealous is the law of the untarnished reputation of its Courts for the strictest adherence to the fixed rules of legal procedure that it will annul and set aside any action of the Courts taken in disregard of them. Note the meticulous care with which juries and jurors are guarded against influence from any source or direction not under the control of the Court. A jury as a whole, and jurors individually, are not permitted to view the locus of a crime, or of the occurrence which gives rise to the suit except by order of the Court and under the supervision of its officers."
And the Court concluded: "It would seem to be clearly established that a judgment founded upon evidence derived from a view or inspection of the premises by the Judge who renders it, without notice or consent of counsel or parties, is reversible error."
That case, it is true, does not relate to the actions of the jury, but it throws light upon the question involved.
In the case of State v. Ballew, 83 S.C. 82, 63 S.E., 688, 689, 64 S.E., 1019, 18 Ann. Cas., 569, the defendants were convicted of conveying into the county jail certain implements for the purpose of aiding prisoners to escape, the implements being a cold chisel, hammer, and a bunch of keys. The defendants denied having taken these articles to the jail. The prisoners testified that they did not use these implements, and that they had used an old hatchet left by the jailor. The jailor testified that the hatchet was outside the cell.
The Court said: "While the jury were viewing the cell, Dukes, the prosecutor, exhibited to them the cord and piece of iron which the defendants had endeavored to prove was used by the prisoners to draw the hatchet into the cell. Dukes placed the hatchet out of the cell and against the wall. The jury then tried to throw the iron attached to cord so as to draw the hatchet into the cell; but failed, for the reason, as contended by defendants' counsel, that the hatchet was placed against the wall. In deciding the motion for a new trial, the Circuit Judge said he would grant the motion on account of this action of the jury, but for the fact that the defendants' counsel, with full knowledge of the action of the jury, failed to bring it to the attention of the Court until after the verdict. Juries may be allowed, in the discretion of the Court, to inspect the scene of the transaction under investigation, but it is improper for the jury to take evidence by experimentation or otherwise outside of the Court. Thompson v. Mallet, 2 Bay, 94. There can be no doubt, therefore, that the action of the jury in this instance was improper."
It is very clear that new trial would have been ordered, but for the fact that defendants' attorneys were present when the experiment was made, and did not call the matter to the attention of the Court before the verdict. See, also, State v. Suber, 89 S.C. 100, 71 S.E., 466; 64 Corpus Juris, 1016; 46 Corpus Juris, 144.
In my opinion, in the present case, the conducting of the experiment by the jury, on this vital issue, amounted to the taking of testimony by them.
The sheriff was not a witness in the case. The jury may have drawn erroneous inferences, as so much depended upon the exact speed of the Anderson truck. The truck was much larger than the sheriff's car, and one standing at the filling station could no doubt see it sooner than he could see the automobile of the sheriff, as it came around the curve.
The testimony at the trial was that the Anderson truck was going about 35 miles per hour. If the car of the sheriff was moving a very little more, or a very little less, than that speed, quite a difference would be made upon this highly important issue. The approach of the two trucks to each other, and the actual collision, covered an exceedingly short space of time.
Jurors, of course, in going to the scene of a transaction, do so for the purpose of making use of their senses of sight, but this does not mean that they may make experiments on the ground, or re-enact a collision, where this amounts to the taking of testimony out of Court.
If the jury could properly use one automobile to represent the Anderson truck, they could as well employ other cars to take the part of the Baroody and Cheraw Brick Company trucks, and thus attempt to re-enact the entire scene.
The record shows that neither plaintiff, nor his counsel, knew anything about the making of the experiment until after the adjournment of the Court.
The conducting of the experiment was prejudicial, I think, to the plaintiff, not only because the jury may have drawn a wrong conclusion from it, but for the reason that the plaintiff's counsel did not have the opportunity of arguing to the jury the facts surrounding the experiment.
My conclusion is that a new trial should be ordered.
The granting of the new trial carries with it no criticism or reflection upon Sheriff L.D. Odom, whom I know of my personal knowledge to be a gentleman of the very highest character, as well as being a faithful and efficient officer. He simply carried out the directions given to him by the jury.
It is therefore ordered that the motion for a new trial of this case be, and it is hereby, granted.
Messrs. W. Marshall Bridges, William H. Blackwell and L.C. Wannamaker, for appellants, cite: New trial on newly discovered evidence: 106 S.C. 123; 90 S.E., 260; 193 S.E., 721; 35 S.C. 417; 14 S.E., 931; 127 A.S.R., 554; Ann. Cas., 1917-B, 904. As to conduct of jury when viewing place of accident: 194 S.E., 771; 12 S.E., 757; 41 S.E., 439; 96 S.E., 938; 136 S.E., 840; 169 S.E., 610; 2 Rich., 119; 20 R.C.L., 251; 16 R.C.L., 312; 193 N.W., 35; 80 A.L.R., 111; 153 N.E., 151; 148 N.E., 82; 133 So., 16; 153 So., 77; 46 C.J., 144; 96 P., 595; 19 L.R.A. (N.S.), 223; 213 N.W., 266; 33 S.E., 240; 160 S.C. 229; 158 S.E., 409; 83 S.C. 82; 63 S.E., 688.
Messrs. Willcox, Hardee, Houck Wallace and Stevenson Lindsay, for respondent, cite: Appeal from order of new trial: Sec. 26, Code, 1932; 92 S.C. 364; 134 S.C. 510; 133 S.E., 444; 167 S.C. 500; 166 S.E., 629; 129 S.C. 36; 123 S.E., 323; 2 A.J., 907; 137 A.S.R., 930; 121 S.C. 302; 14 S.C. 428; 1 S.C. 1; 165 S.C. 355; 164 S.E., 11; 181 S.C. 258; 187 S.E., 345; 89 S.C. 50; 71 S.E., 294; 2 Bay, 94; 83 S.C. 82; 160 S.C. 229; 158 S.E., 409. Conduct of jury: 89 S.C. 100; 64 C.J., 1016; 46 C.J., 144; 33 S.E., 240; 194 S.E., 71; 20 R.C.L., 251. New trial on newly discovered evidence: 106 S.C. 123; 96 S.C. 267; 181 S.C. 288; 187 S.E., 341.
December 3, 1940. The opinion of the Court was delivered by
This action is for damages which plaintiff alleges grew out of the collision between the truck of plaintiff and that of the defendants, which was brought about through the negligent actions of the driver of defendants' truck.
The case was heard by the Honorable E.H. Henderson, presiding in the Court of Common Pleas of Marlboro County, and resulted in a verdict for defendants. A motion for new trial on the minutes was made and by consent of counsel was marked "Heard" on the docket, and later was heard by Judge Henderson at his chambers at Bamberg, S.C. On May 23, 1940, his Honor filed an order granting the motion for new trial. From which order comes the appeal to this Court, predicated upon exceptions which are argued by appellants' counsel upon two grounds, viz.:
"I. Upon motion for a new trial on the minutes, was it proper for the trial Judge to consider the later discovered ground of alleged misconduct of the jury and to accept ex parte affidavits in support thereof, when neither the grounds nor the affidavits were served upon defendants' counsel before argument of the motion?
"II. Did his Honor, the trial Judge, err in holding that the alleged acts of the jury, when taken to view the scene of the accident, constituted an experiment and a taking of testimony, prejudicial to the plaintiff, warranting a new trial?"
The order of Judge Henderson will be reported here. It gives a clear history of the case which obviates the necessity of repeating the facts here.
We think the cardinal error of appellants' position lies in assuming that this is a motion made on after-discovered evidence.
At page 214, 46 Corpus Juris, this occurs: "There is no instance of a new trial granted for matters subsequent to the verdict save in the case of newly discovered evidence."
There is no fact of newly discovered evidence here. The facts upon which the motion is made were a part of the trial of the case. The alleged misconduct of the officers of the Court occurred when the jury was taken to the scene of the accident; this was by agreement of counsel. It is true that the attorneys and the Court did not know of it until later, but this case was still within the jurisdiction of the Court. It still had for consideration a motion on the minutes which was marked "Heard". Suppose the Court had proceeded to hear the motion then and there, when and where made? Could it be argued that the alleged misconduct of the officers, could not be brought to its attention, and that such alleged misconduct would not be considered as a part of the proceedings of the trial? We think there can be no doubt of the correctness of this position. Moreover, we think that the appellants are not now in position to make this plea. At the hearing of the motion at chambers, appellants' counsel objected to the affidavits being accepted by his Honor on the ground that he had not been served with copies of them. His Honor received the affidavits, but granted to counsel thirty days in which to reply to them and to file argument. Counsel accepted this grant of leave to the extent of filing a brief, but did not file any affidavits in reply to those offered by the respondent.
It will be observed that appellants have not charged by exception or argument that the trial Judge abused his discretion in the premises. Doubtless, counsel recognized that the granting of the motion was within the discretion of the trial Judge and realized that there was no ground upon which to allege an abuse thereof. We think the discretion of his Honor was wisely exercised.
The order appealed from is affirmed. It will be reported.
MESSRS. JUSTICES BAKER, FISHBURNE and STUKES, and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.