Opinion
Docket No. 56483.
Case below, Court of Appeals No. 16538, per curiam opinion of November 8, 1974.
Posner, Posner Posner (by Samuel Posner), for plaintiffs. (Docket No. 56483.) Case below, Court of Appeals No. 16538, per curiam opinion of November 8, 1974.
ORDER
Entered June 27, 1975. — REPORTER.
On order of the Court, plaintiffs-appellants' application for leave to appeal is considered, and the same is hereby granted. The Court, sua sponte, pursuant to GCR 1963, 865.1(7), hereby reverses the decision of the Court of Appeals and remands the cause for a new trial.
On the morning of the second day of the jury's deliberations, the trial judge, with neither counsel present, reinstructed the jury on the plaintiffs' burden of proof. This procedure violated GCR 1963, 516.4 providing that "the court may in its discretion further instruct the jury" during its deliberations "in the presence of or after notice to counsel."
The violation in this case was not harmless. Before recessing on the previous evening, the jurors had reported to the judge that they were considering awarding damages. The court's additional instructions favored defendants, and in the context of the jurors' previously announced position, might have been understood by the jurors as an instruction to return a verdict for defendants.
SWAINSON, J., not participating.