Opinion
January 5, 1951.
Appeal from the Circuit Court for Dade County, William A. Herin, J.
L.S. Bonsteel, George A. Brautigum, and Smathers, Thompson, Maxwell Dyer, all of Miami, for appellant.
Morehead, Pallot, Forrest Brown, Miami, for appellees.
The sole matter for our decision is the propriety of the trial judge's repetition of a charge when the jury voluntarily returned to the courtroom after beginning their deliberations.
The governing statute is § 54.22, Florida Statutes 1941, and F.S.A.: "When a jury, after due and thorough deliberation upon any cause, shall return into court without having agreed on a verdict, the court may explain to them anew the law applicable to the case, and may send them out again for further deliberation * * *."
The jury retired to consider the case and returned to the courtroom three hours later to report that they had not arrived at a verdict. The judge inquired whether the jurors wished to ask any questions, and was told that they lacked "concrete information," seemed "unable to agree as to the percentage of the blame one way or the other," and felt one party was not wholly responsible, nor yet that the other was at fault. This prompted the court to ask whether the jury wished to hear again the charge defining contributory negligence. Later in the colloquy the judge expressed a willingness to deliver the entire charge, but the jury concluded that he need read only the portion relating to contributory negligence.
The appellant insists that it was prejudicial error to charge the jury only on this aspect of the case.
Clearly under the statute the court was empowered to give the jury again the "law applicable to the case" when they returned to the courtroom without having agreed. We do not construe the statute to mean that he must repeat the entire charge if the jury request only some part of it dealing with a particular issue or phase of the controversy or, of course, with the duties they are obliged to perform. We think the court was correct in confining his further charge to the issue that seemed to be troubling the jury. Nor did he err when at the outset he asked if this was the charge they wished to hear again, as he had good reason to believe this was what they had in mind when they reported a difference of opinion as to the "percentage of blame." The judge, in following such a statement with an inquiry as to whether the jury wished him to recharge on contributory negligence, did not indicate that he, from the bench, was emphasizing that plea of the defendants or any testimony that had been introduced relative to it.
We approve the judge's handling of the situation and think no prejudicial error occurred.
Affirmed.
ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.