Opinion
No. 40818.
February 14, 1949. Rehearing Denied, March 14, 1949.
1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Burden of Proof. Under the Federal Employers' Liability Act plaintiff is required to present probative facts from which the negligence and the causal relation can be reasonably inferred. And a jury verdict may be set aside only when there is a complete absence of probative facts to support it.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Safety Chains Not Loosened: Instruction Supported by Evidence. There was evidence to support an instruction that plaintiff was jerked to the ground when a derrick boom made a sudden swing because power was applied without loosening the safety chains.
3. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Failure to Give Warning: Instruction Supported by Evidence. Plaintiff's instruction No. 2 was supported by evidence that it was customary to give a warning before swinging the boom of a loading derrick and that failure to give such warning resulted in plaintiff being jerked to the ground when the boom was suddenly moved.
4. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Negligence of Plaintiff Not Sole Cause. The alleged negligence of plaintiff was not the sole cause of his injury as a matter of law.
5. TRIAL: Discussion With Jury Foreman in Court's Chambers: Error Not Waived. It was error for the trial court to discuss in his chambers with the foreman of the jury the question of whether the amount of the verdict could be compromised. And the error was not waived by counsel for defendant who was present in court and failed to object, as said counsel was not in the judge's chambers and did not hear the conversation.
Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.
REVERSED AND REMANDED.
Sullivan, Finley Lucas, Wilder Lucas and Ralph T. Finley for appellant.
(1) A railroad, under the Federal Employers Liability Act, is not an insurer of plaintiff's safety, but is liable only for failure to exercise ordinary care under the circumstances, and if the evidence fails to show negligence, a verdict for defendant should be directed. Ellis v. Union Pacific R. Co., 329 U.S. 649; Myers v. Reading Co., 331 U.S. 477; Fleming v. Kellett, 167 F.2d 265; Lavender v. Kurn, 354 Mo. 196, 189 S.W.2d 253. (2) The injury must be such as might reasonably be anticipated, and not one resulting from mere accident, or where the connection between the alleged negligence and the injury is based upon speculation or conjecture. Brady v. Southern Ry. Co., 320 U.S. 476; Wolf v. Henwood, 162 F.2d 998; Trust Co. of Chicago v. Erie R.R. Co., 165 F.2d 806. (3) The evidence fails to show that plaintiff's fall and injury could have been anticipated as a result of any act or nonaction by the defendant, and fails to show that the alleged acts or omissions of defendant proximately caused plaintiff's injuries. 38 Am. Jur., pp. 707-710, sec. 58, pp. 712-713, sec. 61; American Heating Plumbing Co. v. Keene, 96 F.2d 170; Dubois v. International Paper Co., 96 F. 37. (4) The evidence is insufficient to support a finding for plaintiff under Instruction 1 on the theory that the boom of the crane swung suddenly and violently to the north because unknown to plaintiff, the safety chain had been released or lengthened so as to permit the boom to swing north when the power was applied in an effort to pick up the rail in question. The plaintiff's theory under said instruction is that it was negligent not to have the boom directly over the rail if the safety chain was loosened or lengthened, and that it had been released or lengthened at the time of his fall. The plaintiff's contention that the safety chain was loosened or lengthened is based on a mere inference because the boom jerked. But the inference is destroyed by the positive and uncontradicted evidence of witnesses for both plaintiff and defendant, who were in a position to know the facts, that the safety chain had not been loosened or lengthened. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333; Texas Co. v. Hood, 161 F.2d 618; Howell Turpentine Co. v. Commissioner, 162 F.2d 319; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511. (5) The evidence is insufficient to support a finding for plaintiff under Instruction 2 on the theory that the defendant was negligent in failing to warn plaintiff to give slack, because such theory of negligence is based upon the hypothesis that the boom jerked because the chain had been released or lengthened so as to permit the boom to swing to the north when the power was applied in an effort to pick up the rail in question. But the theory that the chain had been released or lengthened is based upon a mere inference, as in the case of Instruction 1, which inference was destroyed by the positive and uncontradicted evidence of defendant's and of plaintiff's witnesses testifying on the subject, that the chain had not been released or lengthened. Authorities, Point (4) supra. (6) The evidence is insufficient to support a verdict under the theory of Instruction 2, for the further reason that the evidence is insufficient to show a duty to warn the plaintiff, or that the alleged custom to call for slack was for the plaintiff's benefit, or for the purpose of warning the plaintiff, or that any call for slack was required under the circumstances. Chicago N.W. Ry. Co. v. Garwood, 167 F.2d 848; Eckenrode v. Pennsylvania R. Co., 164 F.2d 996. (7) The alleged custom or practice was not for the benefit of plaintiff, but of the men handling the rail on the north side of the track, and no negligence can be found under the theory that a slack order was for the purpose of warning plaintiff. C. O. Ry. Co. v. Mihas, 280 U.S. 102; Thompson v. Downey, 78 F.2d 487; Central Vermont Ry. Co. v. Sullivan, 87 F.2d 171. (8) Plaintiff's Instructions 1 and 2 are based upon separate and distinct theories of negligence. No Court could tell upon which theory of negligence the verdict is based, or whether it is based upon both theories. Since the case was submitted under more than one theory, if either or both of said instructions are unsupported by the evidence, the verdict cannot stand. Chicago N.W. Ry. Co. v. Garwood, 167 F.2d 848; Schilling v. Delaware H.R. Corp., 114 F.2d 69. (9) The evidence shows that the plaintiffs' fall and any resulting injuries were caused solely by the plaintiff's own negligence in holding the rope tightly when there was no occasion therefor, and "paying no attention whatever to anything else," when the crane, the crane operator, and a part of the boom on the flat car were in plain view, all of which is established by plaintiff's own testimony. (10) The court erred in requesting the foreman of the jury to appear before the court in chambers when the jury returned to Court with a request for further instructions and in orally discussing said matter with the foreman alone and orally instructing him in answer to such request, without convening court and receiving the request in the presence of the entire jury and in the presence of counsl. Said procedure by the court was contrary to Section 105 of the General Code of Civil Procedure, Laws of Missouri, 1943, page 386, requiring instructions to the jury to be in writing, requiring instructions of the court's own motion to be in writing and requiring that the court afford ample opportunity for counsel to examine instructions before the same are given, and to make objection thereto out of the hearing of the jury. (11) The secret conversation with the foreman of the jury and the conversation, even as detailed by the court, was manifestly prejudicial to defendant, and was not only contrary to law and the decisions of this court, but was likely to result in a misunderstanding by the foreman of whatever statements or instructions the court made to him, and was also likely to result in a failure of the foreman to correctly relay to the jury such statements or instructions by the court, with a consequent misunderstanding by the other members of the jury. State v. Alexander, 66 Mo. 148; Chouteau v. Jupiter Iron Works, 94 Mo. 388, 7 S.W. 467; Chinn v. Davis, 21 Mo. App. 363; Edens v. Hannibal St. J.R.R. Co., 72 Mo. 212; McPeak v. Mo. Pac. Ry. Co., 128 Mo. 617. (12) The rule applies in both civil and criminal cases. State v. Beedle, 180 S.W. 888. (13) The principle of the foregoing cases has been affirmed down to recent times. State v. Golden, 353 Mo. 585, 187 S.W.2d 109; Sullivan v. Union Electric L. P. Co., 331 Mo. 1065; Boyd v. Pennewell, 78 S.W.2d 456; Berst v. Moxom, 163 Mo. 123, 145 S.W. 857.
Frank Mattes and Chelsea O. Inman for respondent.
(1) It is not necessary that defendant should have anticipated the particular injury happening in the precise manner it did. It is sufficient if some injury was to be anticipated as a likely result of defendant's conduct. Mrazek v. Terminal Railroad Assn. of St. Louis, 341 Mo. 1054, 111 S.W.2d 26, certiorari denied 58 S.Ct. 760; State ex rel. v. Shain, 348 Mo. 650, 154 S.W.2d 775; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558; 38 Am. Jur., sec. 62, p. 713. (2) The evidence was sufficient to support the inference that the chain had been loosened from the boom or lengthened, so as to allow an unusual movement to the north. This appears as a necessary inference from the testimony that the unusual movement could not have occurred absent such event. The jury properly drew such inference, notwithstanding the testimony of some of defendant's witnesses that the chain had not been released or lengthened. Martin v. St. L.-S.F. Ry. Co., 329 Mo. 729, 46 S.W.2d 149; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740; Ellis v. Union Pac. R. Co., 67 S.Ct. 598. (3) Undertaking to lift the rail when the boom was not over it was negligence. The lateral movement and likelihood of injury to some employee could have been foreseen. Authorities supra, and; Bailey v. Central Vermont Rwy. Co., 319 U.S. 350, 63 S.Ct. 1062; Blair v. B. O.R. Co., 323 U.S. 600, 65 S.Ct. 545. (4) Violation of the custom to give an order or warning for slack was negligence as to the plaintiff. The custom was intended in part at least for his protection. Armstrong v. M. O.R. Co., 331 Mo. 1224, 55 S.W.2d 460, certiorari denied 53 S.Ct. 689; Southern Rwy. Co. v. Cook, 226 F. 1, 6; Brock v. M. O.R. Co., 330 Mo. 918, 51 S.W.2d 100. (5) The evidence was sufficient to establish said custom. Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Smith v. Thompson, 182 S.W.2d 63. (6) Questions of negligence and proximate cause are always for the jury unless it can be said that there is an entire absence of probative facts. Lavender v. Kurn, supra; Ford v. L. N.R. Co., 196 S.W.2d 163; Kriswold v. Gardner, 155 F.2d 333; Tiller v. Atlantic Coast Line R. Co., 63 S.Ct. 444, 318 U.S. 54. (7) Since plaintiff's injury resulted "in whole or in part" from negligence of the defendant, his contributory negligence was not a defense. F.E.L.A., Sec. 1, 45 U.S.C.A., Sec. 51 et seq. (8) Since appellant's counsel, for at least one and one-half hours prior to the rendition of the verdict, had actual knowledge of the fact that the jury told the deputy sheriff they desired additional instructions and thereafter the court orally communicated with the foreman of the jury, in chambers, but notwithstanding such knowledge, made no objection thereto, the misconduct was waived. This assignment of error, in appellant's motion for new trial, came too late, in the absence of timely objection and request for a mistrial. The conduct of the court was misconduct per se and was timely known by both counsel for appellant and respondent. Neither side objected and after verdict neither side can complain. Thornton v. Stewart, 240 S.W. 502; Boyd v. Pennewell, 78 S.W.2d 456; State v. Gilmore, 336 Mo. 784, 81 S.W.2d 431. (9) Aside from waiver discussed in Point (3) appellant cannot complain because the communication was not an oral instruction, and hence no prejudice could have resulted to appellant. The trial court's memorandum shows he only told the foreman to read the instructions given and forms of verdict. White v. Hasburgh, 124 S.W.2d 560; Mo. R.S.A., Sec. 847.123; State v. Shelby, 333 Mo. 610, 62 S.W.2d 721.
Appeal from a judgment upon verdict (nine jurors agreeing) for $10,000 in plaintiff's action under the Federal Employers' Liability Act, 45 U.S.C.A., § 51 et seq. The injuries were alleged to have been sustained by plaintiff when he was working as a member of a work-train crew picking up loose rails and scrap along defendant's east-west track between Clarence and Monroe City.
Errors are assigned in submitting plaintiff's case to the jury, and in the instructions given; and in the trial judge's action in conferring with the foreman of the jury in chambers and in the absence of counsel for the parties.
The plaintiff was injured about four o'clock the afternoon of February 2, 1945. Defendant's employees were then operating the work train in picking up rails just west of Monroe City. The earth was frozen and there was some snow on the uneven ground at the scene of plaintiff's injury.
In respective order from west to east, the work train consisted of a way car or caboose, an engine and tender, two gondola or coal cars, a flatcar equipped for hoisting and loading rails from the roadbed into the gondola cars, and two more gondola cars. Loading equipment, mounted on the flatcar, consisted of two derrick cranes with booms or beams which could be moved laterally. (We are here concerned with the operation of the derrick crane mounted on the west end of the flatcar, which crane was then being used in loading rails from the north side of the track and into the gondola car immediately west of the flatcar.)
A cable ran from a drum (mounted on the upright mast of the derrick crane) out over and parallel with the boom and through [559] a pulley at the end of the boom. A grappling hook was attached to the end of the cable. The cable and hook were used as a tackle to engage the center of a loose rail and in holding and bearing the rail up, over and into the gondola car. The hoisting and lowering movements were accomplished by means of compressed air. The employee who engaged the grappling hook is called a "hooker." Two other men steadied the rail as it was hoisted; they are called "tailers." Three men, "placers," were on duty in the gondola car — these men "would get the rail when it got to the top of the car and lay them."
Rope "pullers," ordinarily two on each side of the gondola car, manned ropes attached to the pulley end of the boom. The pullers on one side of the car caused the crane to move laterally out above the "shoulder" of the roadbed and, when the grappling hook was hooked to a loose rail and the rail was hoisted so as to clear the top of the gondola car, the pullers on the opposite side of the car pulled the rail-bearing boom laterally over the gondola car so that the rail could be lowered and nicely placed in the car. Plaintiff was a puller on the south side of the gondola car. When "they got the rail up to the top of the car," it was plaintiff's duty to "pull it on the car. . . . When it got up there they hollered `Pull' and we pulled it on the car." The foreman was "on the car where the boom was." As a general rule the rope pullers were directed by the foreman to "slack or tight. That meant to loosen or tighten. . . . He would . . . holler `Pull.'"
Safety chains were fastened to the end of the flatcar and angled along and were attached to each side of the boom. The chains were attached to the boom at points near one fourth of the extent of the boom. These safety chains were adjustable, their adjusted length governing the distance the boom could be moved laterally. The men, placers, working in the "rail car" ordinarily made the adjustments.
Most of the rails being loaded were "on the shoulder" along the roadbed near the ends of the ties, but occasionally one, a "wide rail . . . maybe one or two a day. You never could tell. You find one once in awhile," was to be found some distance over the embankment.
At the time plaintiff was injured, the crew was in the process of loading a "wide rail" from the north side of the track. Plaintiff was standing south of the gondola car holding the rope to keep it out of the snow. Plaintiff testified he was facing eastward in his usual position so as to get his instructions from the foreman as he customarily did; "as a general rule he (the foreman) would say `Pull' or `Slack.' At that time he didn't say anything. I was standing holding the rope waiting for an order, which wasn't called. . . . When they hooked onto the rail and put the power on it jerked and throwed me. . . . I lit on my back. It threw me over a pile of dirt there that hadn't been dressed down." Plaintiff testified he was holding the rope "tight (but not like a wild mule) because I figured they were loading at that time on the other side. I was ready to pull if he hollered `Pull.'"
There was testimony tending to show the safety chains must be let out in order to reach and hoist a rail which "is lying down past the edge of the shoulder . . . you got to let that south chain out if the rail is over the (north) dump." If the south chain were unhooked or let out and if the pulley end of the boom were not directly over the wide rail, the weight of the rail (when hoisted) would cause the boom to "jerk" to the northward; but it could not move suddenly or "jerk" northwardly unless it was unhooked or let out. And there was testimony tending to show that, if the chain were not unhooked or lengthened, the tackle would drag a "wide rail," endangering the hooker and tailers on duty north of the car. At the time plaintiff was injured the grappling hook was engaged with a wide rail, although the pulley end of the boom was not out directly over the rail. When the hoisting apparatus was used, the boom suddenly swung "three to five feet" to the northward "jerking" plaintiff and causing him to be thrown upon the uneven frozen ground.
Plaintiff's case was submitted to the jury upon hypothesized facts supporting the theories of defendant's negligence. (1) in failing to have the boom of the crane directly [560] over the rail to be hoisted from the north side of the track and when, although unknown to plaintiff, the safety chain had been released or lengthened so as to permit the boom (when the hoisting power was applied) to swing northwardly from its then position; and (2) in violating a uniform custom and practice of defendant before applying the power, in such circumstances, to warn the rope pullers to give slack. Only the issue of specific negligence (1) was submitted in plaintiff's Instruction No. 1; and plaintiff's Instruction No. 2 also hypothesized facts supporting specific negligence (1) and (2), but submitted the issue of specific negligence (2) in violating the alleged custom. There is no contention the two instructions were defective in form, but each of the instructions directed a verdict for plaintiff upon a finding of the facts hypothesized. It is, therefore, necessary to determine if there was substantial evidence supporting the submission of both of the submitted issues of negligence. Hutchison v. Thompson, Mo. Sup., 175 S.W.2d 903.
Defendant-appellant contends there was no evidence the safety chains had been loosened or lengthened, and no evidence of a custom or practice to warn the rope pullers to slacken (or pull).
Furthermore, defendant-appellant contends that the alleged custom or practice was not for the benefit of the plaintiff, but for the benefit of defendant's employees, hooker and tailers, who were handling the rail on the north side of the track; that plaintiff's fall and injury could not have been reasonably anticipated as a result of the alleged negligence; and that no substantial evidence supported the conclusion the alleged negligence proximately caused plaintiff's injury.
Defendant-appellant correctly urges the Federal Employers' Liability Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of the employer's liability is his negligence, not the fact that injuries occur. And the employer's negligence must be "in whole or in part" the cause of the injury. 45 U.S.C.A., § 51; Wilkerson v. McCarthy, 1949, 69 S.Ct. 413; Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598; Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232. The employee-plaintiff is required to present probative facts from which the negligence and the causal relation can be reasonably inferred; ". . . the essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077; Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334. "Only when there is a complete absence of probative facts to support the conclusion reached" by a jury is an appellate court justified in overturning the jury's verdict. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740; Myers v. Reading Co., supra.
It is true defendant's witnesses testified the safety chains had not been released or loosened and that no sudden swinging of the boom to the northward occurred. This evidence, no doubt, was weighed by the jury. It is also true plaintiff testified that he, being down by the south side of the gondola car, was not in a position to see whether the chain was or was not loosened. But, as we have stated, there was evidence tending to show the facts that the boom, when the hoisting power was applied, did swing suddenly to the northward; and that the "jerk" of the boom could not have happened except the boom had been released or loosened. Such facts were substantial bases for the reasonable inference the safety chains had been so lengthened or loosened as to permit the sudden movement of the boom, notwithstanding the positive testimony to the contrary. Martin v. St. Louis-San Francisco R. Co., 329 Mo. 729, 46 S.W.2d 149. In the case of Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, cited by defendant, there was no shown basis of probative fact for an inference the two strings of cars were brought into violent contact as alleged by plaintiff. Plaintiff's witness, Bainbridge, could only state he heard a loud crash. A crash was not unusual in the busy switching yard — "it happened [561] every day." The witness was not in a position to see whether or not the strings of cars collided. As a "fact" basis for an inference the cars did collide as alleged by plaintiff, Bainbridge's testimony of the "crash" was insubstantial.
We think it unnecessary to here restate the substantial evidence we have hereinbefore stated tending to show the hoisting and loading of rails was directed by a foreman who customarily gave orders to "slack" and "pull." Evidence tended to show it was the plaintiff's duty to heed the orders and to be in readiness to aid the process of loading. It was to be expected defendant's employees, including plaintiff, engaged in the loading operation, conscious of the practice, would regulate their conduct in anticipation of the customary orders. Indeed, the practice does not seem to have been so much for the purpose of safety as for the purpose of facilitating the loading operation. The failure to give the order or warning to slacken, isolated from the circumstances obtaining, might not be considered a violation of a duty to plaintiff. But we bear in mind the evidence tending to show the facts that, when the hoisting power was applied, the pulley end of the boom was not over the "wide rail" and the south chain had been loosened or unhooked, and no order given; and hypotheses of such facts were included in plaintiff's Instruction No. 2.
Considering the evidence from a standpoint most favorable to plaintiff, the evidence justified a finding the boom jerked because the operation of lifting the wide rail was made when the chains and boom were loosened in such a way that the boom could be suddenly moved laterally when the hoisting power was applied. It seems reasonable to say that it should have been foreseen such an operation in such a way was likely to injure some employee engaged in the operation of loading the rails. The jury was warranted in finding that the jerking of the boom caused plaintiff to fall; and that by giving a warning of the movement, such as a call for "slack," although the boom was not over the rail and the chains were not properly adjusted, defendant could have avoided the casualty. Although it might be urged the defendant could not have foreseen the manner in which the defendant's conduct might injure, yet, if the injury to someone would be a reasonable and probable consequence of defendant's conduct, it makes no difference that the manner in which it did injure someone might not have been foreseen or anticipated. Mrazek v. Terminal R. Ass'n. of St. Louis, 341 Mo. 1054, 111 S.W.2d 26; Vol. II, Restatement of the Law of Torts, § 435, pp. 1173-1177; see also Floyd v. Thompson, 356 Mo. 250, 201 S.W.2d 390, and cases therein cited.
We hold the evidence justified the conclusions that defendant was negligent as submitted in plaintiff's Instructions Nos. 1 and 2, and that its negligence ("in whole or in part") proximately caused plaintiff's injuries. This ruling also disposes of a contention of defendant that, as a matter of law, alleged negligence of plaintiff was the sole cause of his injury.
After the issues of the case had been submitted to the jury and after the jury had deliberated for some time, the jury were conducted into the courtroom by the deputy sheriff. The trial judge, without convening the court, requested the deputy sheriff who was in charge of the jury to conduct the foreman to the judge's chambers. The foreman remained in the judge's chambers for "a few minutes." After a conference with the judge, the foreman returned to the courtroom and the jury were conducted back to the jury room. One of defendant's counsel was in the courtroom at the time. Soon thereafter, a noonday recess was declared. When court reconvened after the recess, counsel for defendant was informed "the jury was supposed to have told the deputy sheriff . . . they desired additional instructions," but neither counsel for plaintiff nor for defendant interposed any objection; and an hour and a half after the noonday recess the jury returned a verdict for plaintiff as stated.
There is contained in the record a memorandum, prepared and filed by the trial judge when the motion for a new trial was overruled, in which memorandum the trial judge made a statement relating to his conversation with the foreman of the jury. We now set out, in part, the trial judge's memorandum.
[562] "The main point the defendant seems to stress is the interview of the Court, in chambers, with the foreman of the jury, after the deliberations had started. . . .
"The intention in this instance was to ascertain from the jury what the difficulty was, and if additional instructions were needed to take formal action in court.
"The interview with the juror was not intended to be a private one, nor was there any intention that the counsel would be excluded if they desired to be present. Counsel frequently leave the courtroom after submission of the case to the jury, and have to be re-assembled if any important action is to be taken with respect to the deliberations of the jury.
"In the instant situation the question disturbing the jury was a very simple one, and of little importance as bearing upon the merits of the case. It apparently grew out of a misconception on the part of the jury of a statement made by the plaintiff's counsel to the jury in his argument. The foreman related to the Court that the attorney for the plaintiff had stated in the course of his argument that the amount sued for was $55,000, and that was what the plaintiff was claiming, and the question was whether the jury could compromise the amount. The foreman was asked what he meant by `compromise,' and he replied that the jury wished to know whether they could give less than the amount sued for, if the finding was for the plaintiff, or whether they had to give the full amount sued for or nothing.
"It was apparent that the word `compromise' was ill applied, and what the jury really wanted to know was whether they had the power under the circumstances to award less than the amount sued for. It was quite obvious to the Court that the inquiry of the juror bore no relation to any real merits of the case. There was nothing said, nor were there any implications arising out of anything said or done, that there was any desire on the part of the jury to render a compromise verdict.
"It was clear to the Court that the confusion in the minds of the jury could be easily cleared up by a simple reference to the instructions given in the case. So the Court told the juror that he should read the instructions already given in the case and the forms of verdict. The damage instruction contained a complete answer to his inquiry. . . ."
In an early state case (State v. Alexander, 66 Mo. 148, at page 164) this court approvingly quoted the expressed view of the Supreme Judicial Court of Massachusetts, "We are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the cause." Sargent v. Roberts, 18 Mass. (1 Pick.) 337, at page 341. See also Chouteau v. Jupiter Iron Works, 94 Mo. 388, 7 S.W. 467; Chinn v. Davis, 21 Mo. App. 363. Such a communication is improper, but such impropriety does not require a reversal if it is determined the error, in the circumstances, could not have been prejudicial. This is, no doubt, because it is provided that this court, or the courts of appeals, shall not reverse the judgment of any court "unless it shall believe that error was committed by such court against the appellant, and materially affected the merits of the action." Civil Code of Missouri, Section 123, Laws of Missouri 1943, p. 390, Mo. R.S.A. § 847.123; Sullivan v. Union Electric Light Power Co., 331 Mo. 1065, 56 S.W.2d 97; Glenn v. Hunt, 120 Mo. 330, 25 S.W. 181; White v. Hasburgh, Mo. App., 124 S.W.2d 560. In the Sullivan case it was apparent that no prejudice could have resulted; the written instruction was prepared in open court and given in the presence of counsel for both sides although it was sent (not read) to the jury, and the instruction was not in reference to a controverted fact. In the Glenn case the instruction sent to the jury room was not in reference to any controverted issue; there could have been no prejudice to defendant in the instruction given. And in the White case the reviewing court was of the opinion the instruction "could be said to go, merely, to the form of the verdict."
While, in the instant case, there is no doubt the trial judge, a most able jurist with the finest sense of responsibility, was prompted by no improper motive, yet it was improper for him to discuss the case with [563] the foreman of the jury in chambers — not in open court — in the absence of counsel for the parties and in the absence of the other jurors. It is true counsel for defendant did not interpose an objection, although one of defendant's counsel was in the court when the foreman was conducted to and withdrew from the judge's chambers and although, an hour and a half before the verdict was returned, counsel for both parties were advised by someone that the jury was "supposed" to have desired further instructions. Counsel did not then know what conversation took place between the judge and the foreman. Counsel did not question the judge relating to the interview. Counsel did not know that, even though the jury "desired additional instructions," the trial judge in chambers would or did verbally instruct or discuss the case with the foreman in the absence of the other jurors and in the absence of counsel. Counsel did not waive that which they did not know. Our Civil Code contemplates a party be afforded an opportunity "at the time" to make known to the court the action which he desires the court to make, and the party's failure to object at the time does not prejudice him if he is afforded no opportunity to object. Section 122, Civil Code of Missouri, Laws of Missouri, 1943, p. 389, Mo. R.S.A. § 847.122, amended Vol. I, Laws of Missouri, 1947, p. 228.
How simple it would have been for the trial judge to have assumed the bench and, the twelve jurors being in the jury box and counsel for the parties having been caused to be present, to have asked the foreman to state his question there and then in open court. Counsel would have there and then had the opportunity to know and to cause to be recorded, if they wished, the exact language of the foreman's question; and to advise the court what action counsel believed should be taken; or to object to that which counsel might have thought was improper action.
The trial judge, in the memorandum, supra, stated the foreman's question was of little importance as bearing on the merits of the case. But the memorandum discloses the trial judge did discuss the case with the foreman in chambers and in the absence of the other jurors and of counsel. The "merits of the case," of course, included the issues of liability and the amount of the award, and it could not be said that the amount of an award might not be "compromised" or lowered in order to induce the concurrence of one or more jurors in a "finding . . . for the plaintiff" upon the issue of liability. And how did the trial judge know and how can we know, assuming the trial judge was correct in his conclusions stated, that the foreman correctly quoted to his fellows what the trial judge had said.
We are unable to determine the impropriety of the trial judge's action was not prejudicial.
The judgment should be reversed, and the cause remanded.
It is so ordered. Bradley and Dalton, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.