Opinion
No. 6949.
January 12, 1951.
APPEAL FROM THE JASPER COUNTY CIRCUIT COURT, JASPER COUNTY, WOODSON OLDHAM, J.
Vernie R. Crandall, Carthage, for appellant.
Burden Shortridge, Joplin, for respondent.
The appellate jurisdiction of this Court is not questioned. There is only one issue in the case. The petition of respondent was a prayer for damages for personal injuries.
A jury was called and considered the case. Prior to the rendition of the verdict of the jury, and after the cause was submitted to them for consideration, the trial judge entered the jury room alone. Nine of the jury afterward returned a verdict for plaintiff, in the sum of $7,000.
Defendant (now respondent) filed a motion for a new trial, and, among other numerous grounds and alleged errors of the trial court, charged:
"That the court erred in overruling defendant's objection and in refusing to declare a mistrial and discharge the jury after the trial judge had gone into the jury room at the request of members of the jury and had talked to the jury about the merits of the case and had instructed them orally; which conversation took place and said oral instructions were given in said jury room and outside the presence of the defendant and his attorneys, although both defendant and his attorneys were present in the court room.
"That the court erred in instructing the jury orally out of the presence of defendant and his attorneys and outside the court room and without giving the defendant an opportunity to hear said instruction and object thereto or suggest or offer additional written instructions."
On March 22, 1950, the trial judge made the following order:
"Now at this day comes on for hearing defendant's motion for a new trial in this cause. By consent the same is taken up and being seen, heard and fully understood by the Court, the same is sustained for the following reason set forth in defendant's motion, to-wit:
"The Judge committed error in communicating with the jury out of the presence of the defendant and attorneys. It is therefore ordered by the Court that the judgment heretofore entered herein, towit, on the 16th day of December, 1949, be and the same is hereby set aside and the defendant herein granted a new trial in this cause.
"It is further ordered by the Court that all other points in defendant's motion for a new trial be and the same are hereby overruled."
At said time the following oral proceedings were had:
"The Court: In this matter of the motion for new trial in Wiles against Stowe, I have come to the conclusion that the Court was in error in communicating with the jury not in the presence of the parties or their attorneys. Therefore, the motion for new trial is sustained."
When the trial judge set aside the verdict of the jury, counsel for defendant and the trial court had the following conversation:
"Mr. Shortridge: I would like to ask the Court one more question on this, as I understand the Court's reason is he feels that the appellate courts have held such a transaction to be prejudicial error, whether or not the jury were —
"The Court: Reversible error, whether or not there was anything prejudicial in the statement or communication.
"Mr. Shortridge: Reversible. Thank you."
It appears that before the verdict was returned by the jury, the following occurred:
"Mr. Shortridge: Let the record show that at this time after the jury had been out for 15 minutes, the Court went to the jury room and apparently talked to the jury outside of the presence of either party to this suit or their counsel, and the defendant at this time asks that the jury be discharged and a mistrial declared.
"The Court: The request will be refused. The question that the jury asked was as to which vehicle in this case had the right of way, and the Court's reply was that that matter wasn't in the case, and directed the jury to read the instructions."
On April 1, 1950, the plaintiff gave notice of appeal to this Court, and later, time for filing transcript was extended. While many other errors are charged against the trial court, in defendant's motion for new trial, all of such alleged errors, except the one mentioned, were overruled, and appellant's appeal is bottomed solely on the action of the trial court in setting aside the verdict of the jury because of his alleged misconduct in entering the jury room and conversing with the jurors in the jury room, in the absence of the parties and their attorneys.
Appellant court not appeal on any other grounds, because the trial judge sustained appellant on all of such other grounds of the motion for new trial, and defendant cannot complain of the action of the trial court, because he had what he asked for — a setting aside of the verdict of the jury — and defendant did not appeal from the judgment of the trial court and its order overruling all of the other grounds urged in his motion for a new trial. The briefs are directed mostly to that one point, and that is the only point we can consider on this record.
Plaintiff (appellant) seeks, in his reply brief, to justify the action of the trial judge in overruling other errors, assigned by defendant in his motion for new trial. We cannot now determine the correctness of the rulings of the trial judge on such allegations of error in the motion for new trial, because defendant did not appeal from the ruling of the trial judge.
It seems that at first the trial judge was of the opinion that his mere entry into the jury room was not error in itself. He then overruled defendant's request that the jury be discharged. So far as the record shows, nothing occurred in the jury room, while the trial judge was with them alone, that was prejudicial in the slightest to the rights of defendant. Such seems to have been the original idea of the trial judge, as well as the contention of appellant. We are unable to say from the record, that defendant suffered any prejudice whatever from the visit to the jury room of the trial judge. But the trial judge apparently later became of the opinion that such a visit is condemned by the highest authorities of this State and that it was unnecessary for respondent to show that anything prejudicial to him occurred during such visit.
The question before us, then, is whether or not such entry into the jury room by the trial judge, unaccompanied by counsel in the case, and without a showing of prejudice therefrom, was sufficient in itself for setting aside the verdict, later returned by the jury.
Respondent cites four cases, and we have carefully considered each one. The latest expression of both divisions of the Supreme Court, is that reversible error is presumed, merely from such visit, no matter if such visit was without prejudice to the complaining party.
We cannot get away from the very latest decision of Division One of the Supreme Court. Hartgrove v. Chicago, B. Q. Railroad Co., 358 Mo. 971, 218 S.W.2d 557, by Van Osdol, Commissioner, of that Court, with the concurrence of the other Commissioners and all of the Judges of that Division, condemned the practice of the trial judge in visiting the jury room at any time. It is there held that communication with the jury by the trial judge, in other than in open court, and when counsel for both sides are present, is improper and constitutes reversible error.
Lloyd v. St. Louis Public Service Co., Mo.Sup., 227 S.W.2d 460, by Commissioner Westhues, of Division Two of the Supreme Court, with the concurrence of the other Commissioners of that Division, and all of the Judges, holds practically the same thing.
It must have been those cases which persuaded the trial judge to reverse himself and grant a new trial on that ground, although he stated all of the time, that nothing prejudicial to defendant occurred during his visit to the jury room.
Appellant first cites Sullivan v. Union Electric Light Power Co., 331 Mo. 1065, 56 S.W.2d 97, 102. There, written instructions to the jury were held not to be reversible error. That case seems not to be in point, as the action of the trial judge, in visiting the jury room, was not attacked, and the instruction given to the jurors was challenged because such instruction was said to have been misleading and confusing. Besides that, the Commissioner who wrote the opinion said: "It is apparent from the record that the above inquiry was received and the instruction given by the court (as distinguished from the judge of the court) in open court and in the presence of counsel for both sides. Both sides objected and saved exceptions."
In White v. Hasburgh, Mo.App., 124 S.W.2d 560, Judge Bland, of the Kansas City Court of Appeals, held that the communication between the trial judge and the jury was harmless, relying largely upon the case of Sullivan v. Light Power Company, 331 Mo. 1065, 56 S.W. 97, discussed immediately above. In the Sullivan case so relied upon by the Kansas City Court of Appeals, counsel for both sides were present and the objections to the instruction were largely on other grounds than the visit of the Judge to the jury room.
Stark v. St. Louis Public Service Company, 211 S.W.2d 500, was decided in the St. Louis Court of Appeals, by Bennick, Commissioner. The point there was the propriety of the named instruction, amended before the jury retired, and what was said about the rights of appellant not being prejudiced by the action of the trial judge, was not justified by the record.
The case of Hartgrove v. Chicago B. Q. Railroad Co., 358 Mo. 971, 218 S.W.2d 557, is also relied upon by respondent, as one of the latest expressions of the attitude of the Supreme Court. We have discussed that case above. It does not sustain appellant's contention.
The other cases cited by appellant have been examined, and certainly cannot be said to cast any doubt as to the correctness of the cases noticed, which show the present attitude of the Supreme Court.
We cannot get away from the very latest decisions by both divisions of the Supreme Court. It must have been those cases which persuaded the trial judge to reverse himself and grant a new trial, although he then stated that nothing prejudicial to defendant occurred, during such visit, and that there is nothing in the record to show that anything prejudicial did occur.
We agree with the ruling of the trial judge, that such conduct alone is reversible error, and, on account of such error, we must send the case back to be tried again. As respondent did not appeal from the judgment, we cannot consider any of the other grounds now raised by him, against the action of the trial judge.
It is the order of this Court that the ruling of the trial court in granting a new trial should be affirmed and we order that the case be remanded for another trial.
It is so ordered.
VANDEVENTER, P.J., concurs.
McDOWELL, J., concurs.