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of anything going to show to the contrary, fore the sale, the plaintiff advanced to the it must be presumed that the action of the defendant $720, through checks of J. E. court in the premises was unobjectionable. Lewis & Company, the style of the former

Hughes v. Wheeler, 76 Cal. 230, 18 Pac. firm, and coal to the value of $60.75. This 386; Hayne, New Trial & App. § 285, p. action is brought to collect these charges. 843; Koehler v. Cleary, 23 Minn. 325; No mention was made this account at Chinn v. Davis, 21 Mo. App. 363; Hollinsead the time of transfer of the share of the dev. Mactier, 13 Wend. 276.

ceased in the partnership, and the plain

tiff did not then inform the defendant that Rugg, Ch. J., delivered the opinion of the she would be required to pay it. No refercourt:

ence is made to the matter in the indenture The plaintiff and the husband of the de- of sale. The evidence was in conflict touch. fendant were copartners in the coal busi. ing the point whether before the sale bills

The defendant was appointed admin- therefor had been sent to the defendant and istratrix of the estate of her husband. After a demand for payment had been made upon some negotiation an agreement was reached her. whereby the plaintiff bought the share of The jury were instructed in substance his deceased partner in the business for that they were to determine on all the evi$40,000. An “indenture of sale” was exe- dence whether both the plaintiff and the cuted by the defendant both as administra- defendant understood that the personal actrix and individually, transferring to him count against Mrs. Lewis here in suit all the right, title, and interest of the should be wiped out. Various requests for estate of his former partner in the firm as rulings by the defendant presented in differsets, including all accounts and bills due ent forms the proposition that the plaintiff to the copartnership, he assuming all its as surviving partner was under a general debts and obligations. In the meantime, duty to make full disclosure of the affairs after the decease of the husband, but be. I of the partnership to the defendant. Howupon the judge entered the jury room, closed the verdict was sustained, because the comthe door, and held some communication 'munication related only to the form of the with them, and then reported to counsel verdict, and the facts failed to indicate that that the jury wanted further instruction, defendant could have suffered any prejudice and that he informed them that he had from what took place. given them all the instructions upon the Where, after a jury retired to deliberate law which he was able to give, and counsel on its verdict, and while the court was in then suggested that he ascertain upon what session, and in the presence of both counsel, points they desired instruction, whereupon the court officer handed to the court a paper the court and the attorneys for both par- which was a communication from the jury, ties entered the jury room and the court in- to which the court made no repiy, it was quired of the jury upon what point they not error for the court to refuse to inform desired instruction, and explained the mat. defendant's counsel as to the nature of the ter upon which they were having difficulty, communication. People v. Sauerbier, 173 a judgment was affirmed, inasmuch as noth- Mich. 521, 139 N. W. 260. ing hurtful to the parties complaining oc- See also Whitney v. Com. 190 Mass. 531, curred during the time the judge was alone 77 N. E. 516, which is set out sufficiently with the jury, and during all the remain in LEWIS V. LEWIS. ing transactions the counsel were present, In Wichita Falls Compress Co. v. Moody, and no exception was taken to the addi- - Tex. Civ. App. —, 154 S. W. 1032, where tional instruction given.

a jury was deliberating in a room opening In Continental Casualty Co. v. Ogburn, out from the court room where the court

Ala. 64 So. 619, it was held that was trying another case, the door of the the fact that a member of a jury went into jury room being in view of the court, and the clerk's office and held a conversation the jury sent to the judge written communiover the telephone with the presiding judge, cations asking him questions which he anwho was at his home, concerning the in- swered on the same slip of paper, signing ability of the jury to agree, was not re- his name, and directing them to retain the versible error, but the court said: “We slip, the appellate court, while stating that think it would be safer, however, for trial it did not approve the practice, said that it courts to communicate with jurors in all felt constrained to hold that there was a instances in a body and in the presence substantial compliance with a statute which of counsel when practicable.”

provided that when the jury wished to comIn State v. Borchert, 68 Kan. 360, 74 Pac. municate with the court, they should be 1108, where the jury sent a written com- brought into open court in a body and, munication to the judge asking if a verdict through their foreman, state to the court of guilty accompanied with a recommenda- verbally or in writing the questions of law tion for mercy would be received by the upon which they desired further instruccourt, and the judge, without calling in the tions, and that any further instructions jury or notifying the parties, answered on should be given in writing. R. L. S. the same piece of paper in the affirmative,


ever sound in law these requests may be, no communication whatever ought to take they were not germane to the issue raised. place between the judge and the jury after Here was no question of concealment, fraud, the cause has been committed to them by or misrepresentation. It is not contended the charge of the judge, unless in open that the price agreed upon for the sale of court, and, where practicable, in presence the partnership interest not fair. of the counsel in the cause.

The There was no doubt about the fact that only sure way to prevent all jealousies the items in the plaintiff's account had and suspicions is to consider the judge as been furnished to the defendant. The real having no control whatever over the case, point of disagreement was whether the par- except in open court in presence of the ties intended to extinguish liability for parties and their counsel. The public inthese items by transactions connected with terest requires that litigating parties should the sale. The presiding judge performed have nothing to complain of or suspect in his duty by stating the simple issue and the administration of justice." leaving it to the jury as a plain controversy This case has been recognized generally of fact far better than by undertaking to as a leading case, and has been widely cited lay down principles of law more or less re- and approved. See notes in 17 L.R.A. motely connected with the general relations (N.S.) 609; 16 Ann. Cas. 1133, 1141; 14 of the parties, but which had nothing to Ann. Cas. 511, 514, where a large number do with the matter in dispute. No error of authorities are collected. It has been is disclosed in the requests refused or in followed always in our own decisions. Read the rulings given.

v. Cambridge, 124 Mass. 567, 26 Am. Rep. The troublesome aspect of the exceptions 690. In Merrill v. Nary, 10 Allen, 416, it is this: After retiring for deliberation, the was held that for the judge to permit the jury sent a written request for information jury to take a copy of the statutes to their to the judge, who was in his lobby. With- room without the knowledge of the parties out causing the jury to be brought into was such an irregularity as to require the open court, and without returning to the set-ing aside of the verdict. It was said court room, he gave an answer in writing, by Chief Justice Bigelow that “the only and thereupon the jury returned a verdict regular and safe mode of conducting trials for the plaintiff. Both parties, with their is for the court to instruct the jury on all counsel, were in the court room during the material points before they retire to de. entire period from the time when the jury liberate upon their verdict, and, if they retired until the verdict was returned. The have occasion for further information, they nature of the communication was not given should return into court and state the quesout, is not disclosed on the record, and tions on which they wish for further adthe excepting party is ignorant of the con- vice, and receive in open court such directents of the communication from the jury tions as may seem to the judge material to the judge and from the judge to the and necessary.” jury. Immediately upon learning these But, as was said by Chief Justice Shaw facts the defendant filed a motion for a in Com. v. Roby, 12 Pick. 496, at page 516: new trial founded upon them. After a "It is not every irregularity which will renhearing the judge denied the motion, filing der the verdict void and warrant setting it therewith a statement printed in the foot- aside. This depends upon another and adnote. 1

ditional consideration, namely, whether the It is plain that apart from Stat. 1913, | irregularity is of such a nature as to affect chap. 716, this irregularity would have re- the impartiality, purity, and regularity of quired a setting aside of the verdict. This the verdict itself.” was settled in 1823 by Sargent v. Roberts, In that case it was held, after a full 1 Pick. 337, 11 Am. Dec. 185, where, in an review of authorities, that the irregularity illuminating opinion by Chief Justice of furnishing refreshment to the jury after Parker, the principle was established: “That' they had agreed upon their verdict, but be

1 “The written instructions referred to in the question, which in his opinion was imthe motion for a new trial consisted of a material to any issue submitted to the jury, written answer to a written question sent did not require counsel to be put to the into the judge by the foreman of the jury convenience of returning to the court room, under the following circumstances: sent a written answer, accompanied by the

"The judge had retired to the superior statement that the question and court lobby to await the verdict on the last were immaterial. case of the session, court not having been “The action of the judge, although it may adjourned. The communication referred to be deemed irregular, did not, in my opinion, was brought to the lobby between 1 and 2 injuriously affect the substantial rights of

the parties, and therefore, in accordance "The judge, believing that counsel had with the provisions of the Stat. of 1913, gone to their offices, and that an answer to chap. 716, the motion is denied.”


P. M.


fore it was returned into court, at their ! there is or should be an absolute rule of own expense, through the agency of the law in such a case." officer in charge, without direction of the In Whitney v. Com. 190 Mass. 531, 77 court, although reprehensible, did not re- N. E. 516, these facts appeared: Late in quire a new trial. In Kullberg v. O'Don- | the evening, after the judge had gone home, nell, 158 Mass. 405, 35 Am. St. Rep. 507, 33 a distance of several miles, the jury, having N. E. 528, it was held that it was not re-agreed upon their verdict, were in doubt versible error for the judge, after the jury which of several forms handed them to use had been deliberatng for a considerable in expressing their decision, which doubt time and had failed to agree, to call them was communicated to the judge by the offiinto the court room and there openly give cer in charge of the jury. Thereupon the additional instructions in the absence of foreman, in the presence of all the jury counsel, it being the duty of counsel or the and the officer, and with no other person parties to remain in court after the trial present, telephoned the difficulty to the of an action was begun until it was fin- judge, who over the telephone repeated to ished, if they desired to be present at all the foreman in substance what had been proceedings in the cause. But it there was said in the charge as to which forms were said by Chief Justice Field: “It is plain intended to express the different conclusions

that all instructions to the jury reached. The foreman then repeated this must be in open court.”

statement to the jury in the telephonic In Com. v. Heden, 162 Mass. 521, 39 N. hearing of the judge. The jury were withE. 181, it was held that it was not error in the hearirg of everything said by the for the judge to communicate to the jury foreman, and the foreman repeated to the through the officer in charge of them, that jury everything said by the judge. It was upon agreeing on a verdict it might be put said by Chief Justice Knowlton in deliv. in writing and they might separate. Inering the opinion of the court, in effect, Moseley v. Washburn, 165 Mass. 417, 43 that this was a direction to the whole jury N. E. 182, the amount of the verdict de- | “merely as to the proper way to exhibit pended upon two executions. Full in truc and preserve their verdict on paper, after tions were given as to the computation of they had decided upon it, so that there interest upon these sums, to which no ex- might be no mistake in presenting it to ception was taken. Later, the jury sent a the court. The communication in note to the judge by the officer, inquiring principle not very different from the comthe date from which interest should be com- mon direction given through the officer to puted. Thereupon, by direction of the a jury who agree in the nighttime, to seal judge, the officer procured from the jury up their verdict and bring it into court room the executions, and the judge showed the next day. . It went

a little to him the date on each execution which further in telling them how to use the had been pointed out to the jury in the machinery that had been provided for that charge as the date from which interest purpose, but the information was limited should be computed, and directed him to re- to assistance in the use of this machinery, turn the executions to the foreman and to and did not touch any matter that could point out to him the dates which thus had affect the substance of the verdict itself been indicated. The officer followed these before it was agreed upon. There are grave instructions and a verdict was returned for objections to any communication with a the plaintiff with interest computed ac jury made as this was. The possibility of cordingly. It there was said that, al- misunderstanding or mistake involved in it though the practice was not to be com- is such as should preclude the adoption of mended, it was not necessary to set aside it unless in cases of great emergency; but the verdicts, on the ground that the dates the facts stated in this case make it cerfrom which interest was to be reckoned had tain that no miscarriage of justice has rebeen pointed out correctly in the charge in sulted. Limited as this communication was open court, and the interest became, there to a collateral direction as to the manner fore, a mere matter of method of computa- of using the papers supplied for the reception, which the record showed had been casttion of the verdict, it does not require us correctly. The opinion of the court, by to set the verdict aside.” Chief Justice Field, concluded as follows: In all these cases where it has been held “Under these circumstances it is certain that the irregularity was not fatal, the that the instructions sent to the jury by facts were disclosed fully and all that was the officer had no tendency to influence the communicated by the judge to the jury was decision of the jury upon the merits of the plainly set forth on the record. In the case causes, and the irregularity does not seem at bar, the excepting party did not know to us of sufficient importance to require the at the time, and does not know now, the verdicts to be set aside on the ground that substance or nature of the communication

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from the jury to the judge, nor of his reply. I ciples and high ideals in the administration The statement filed by the judge throws of justice, which arise from the consciousno light upon the subject, and we are as ness on the part of those who participate ignorant as the excepting party. The in trials that they are ope to the public, question is whether under these circum- are important safeguards for the purity, jmstances a new trial is required, in view of partiality, and learning of courts, and for Stat. 1913, chap. 716, § 1, whereby it is pro- the uprightness, sound sense, and integrity vided that "no new trial shall be granted of juries. Hearings in camera in commonin any civil action or proceeding on the law courts are so contrary to the spirit ground of improper admission or rejection of that law as to be regarded as almost, if of evidence, or for any error as to any mat- not quite, impossible. See Scott v. Scott ter of pleading or procedure, if, in the [1913] A. C. 417, Ann. Cas. 1913E, 614. opinion of the judge who presidud at the That is the general rule. It has its roots trial when application is made by motion far back in the history of the common law for a new trial, or in the opinion of the su- and of free institutions. It appears to be preme judicial court when application is one of its most signal advantages. This made by exceptions or otherwise, the error feature is a priceless inheritance and one complained of has not injuriously affected to a high degree calculated to preserve to the substantial rights of the parties.” the future the precious privilege of equal

The judge who presided at the trial has ity before the law. It is not necessary to expressed his opinion of harmlessness as to discuss any apparent or real exception to the matter under review in the phrase of this general rule, for certainly the present the statute.

case cannot in any view fall outside that The statute does not reach to such a sit. rule. uation as that here presented. It is not The communication in the case at bar plainly stated that the question of the jury must be treated as having been an instrucand the answer of the judge related to a tion as to law. It was given in secret, and matter of law. But it is almost inconceiv. not disclosed to counsel nor spread upon able that a jury should propound any ques. the record. All that is known respecting tion to a judge whose purpose was not to it is that the judge who gave it regarded gain some information about the law. The it as immaterial. If it was immaterial, it statement of the judge seems to indicate ought not to have been given, though the that it related to law. The inference from giving of it publicly might not have been all the circumstances is almost irresistible reversible error. But the fatal objection tnat it concerned some matter of law, and is that nobody else can tell whether it was hence must be treated on that footing. The immaterial or not. It was the right of the giving of secret instructions as to the law parties to know what it was, in order that is not comprehended within the words they might determine that question for “pleading or procedure.” It is to be noted themselves and assent to it expressly or by that our statute relates only to pleading silence, or to ask to have it reviewed on exand procedure, and does not extend to ceptions. That right was one of substance, "misdirection,” as does order xxxix. r. 6 and not of form. It was denied. The fail. of the English Rules of the Supreme Court. ure to recognize it was not a mere error as Bray v. Ford (1896) A. C. 44, 65 L. J. Q. to pleading or procedure, but as to an es. B. N. S. 213, 73 L. T. N. S. 609. Correct sential feature of trial by jury. instructions upon matters of law are of Exceptions sustained. the very substance of jury trial at common law. Bothwell v. Boston Elev. R. Co. 215

MASSACHUSETTS SUPREME JUDI. Mass. 467, 476, L.R.A. –, 102 N. E. 665,

CIAL COURT. Ann. Cas. 19140, 275. This is different in kind from mere procedure. It is of last

SUMMIT L. HECHT et al., importance that parties and their counsel

BOSTON WHARF COMPANY. duly vigilant in the performance of their duty touching an action on trial have the

JACOB F. BROWN et al., opportunity to know the principles of law which are laid down for the guidanc: of

SAME. the jury. Secret instructions or clandes. tine communications, no matter if given JEREMIAH WILLIAMS et al., with the best of intentions, contravene this fundamental and essential conception of

SAME. common-law trial by jury. One of the dis- (220 Mass. 397, 107 N. E. 990.) tinguishing characteristics of the common

Trial - basing verdict on auditor's findlaw is that its trials are public. The in

ing. centives to the maintenance of correct prin- 1. A verdict by a jury may be based on

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an auditor's finding, unless it is not support. a warehouse was the highest for a period of ed by the facts found, or they are so incon- nearly sixty years does not alone relieve the sistent as to neutralize each other, or are warehouseman from liability for the injury, overcome by other evidence.

if the floor of the warehouse was below the Evidence negligence conduct of height reached by the tides several times others.

during that period, and lower than was re2. The practice of others engaged in the garded as safe by experts in the locality. same business is evidence upon the ques- Same assumption of risk. tion of negligence in not maintaining an ele- 4. Mere knowledge of one depositing goods vation of a warehouse above the possible for storage in a warehouse of the location reach of tides, so as to render the owner and condition of the place where the goods liable for injury by tides to property stored are kept does not place upon him an assumptherein.

tion of risk of injury from a high tide, or Warehouseman act of God unusual relieve the warehouseman of liability for tide liability.

negligence in leaving the property in danger 3. That a tide which injured property in 'thereof. Note. Duty of warehouseman to pro- due to the flooding of the basement by the tect goods against high water. breaking of a city water main, it was held

that the question of defendant's negligence In order to relieve a warehouseman from should have been submitted to the jury, liability for injury to goods by an unusual where plaintiff's evidence showed that deflood which may be deemed an act of God, fendant's cellar was not properly constructhe must not be in any way guilty of negli. ed, that there was no drain to carry off surgence which contributed as the proximate plus water, and that the freezer in which cause to the damage. Carolina Rice Co. v. the poultry was stored was not air-tight or West Point Mill Co. 98 S. C. 476, 82 S. E. water-tight. 679.

In Prince v. St. Louis Cotton Compress So, where crystalized eggs were rendered Co. 112 Mo. App. 49, 86 S. W. 873, an action unfit for use by backwater which came into for damage to cotton stored in defendant's the basement of defendant's warehouse by warehouse, by water due to an unprecedentmeans of the sewer during unusually high ed rise in the Mississippi river, the court water, there being no device to prevent the said that, while defendant was powerless to backwater from coming up the sewer, and, stop the rise in the river, and was under no although defendant knew that the water was legal duty to improve the dike to prevent its rising, it did not take steps to remove the breach or overflow by the waters of river, eggs to a higher level, and did not keep it did owe the duty to its customer to exerwatch of the water during the night to see cise ordinary care and diligence to remove that it did not reach a dangerous level, a the cotton to a place of safety after it saw verdiet for plaintiff was sustained, the court that the same was likely to be submerged, saying that if, under all the circumstances, and a verdict for plaintiff was sustained such as the prolonged rain, the downspouts where defendant's Officers knew that the connecting themselves with the drain, the danger of its warehouse being flooded from low sewer grade, the enormous volume of the waters of the river was hourly increassurface water, the high stream, and the ab- ing, and that the bank was liable to break sence of all protecting devices against back or be overflowed at any time, but failed to flow, defendant had notice of a situation make every reasonable effort in its power to which would put a reasonably prudent per remove the cotton to a place of safety. son on guard to discover the entrance of And where a shipment of books was stored water in any way, and would require him to on a wharf which was well covered, and was take steps to remove the goods, then it ought in other respects, save its proximity to the to be held liable. It was also held that water, a safe and secure place for the storplaintiff was not obliged to take care of the age of such goods, and it was there damgoods, to watch the effects of the storm on aged by water during a storm of rain and the basement, and to remove the goods there wind of unusual violence, which caused the from on need of it. Nor was plaintiff guilty tide to rise to an unusual height and subof contributory negligence in using the eggs merge the dock, a part of which had not been for animal food after they had been con- submerged more than once during a period taminated by the surface water, instead of of twenty years, the part on which the books trying to them for human food. were placed never having been submerged Springfield Crystallized Egg Co. v. Spring before, defendant was held liable for the infield Ice & Refrigerating Co. 259 Mo. 664, jury to the goods, it appearing that at other 168 S. W. 772.

times the water had risen to within a few See also H. A. Johnson & Co. v. Spring. fect of the floor of the wharf, and at the field Ice & Refrigerating Co. 143 Mo. App. prior time when the other part of the wharf 441, 127 S. W. 692, involving a similar was submerged, the water rose to within a state of facts and reaching the same conclu- few inches of the wharf where the books sion.

were stored, and that the tide had been In Baltimore Refrigerating & Heating Co. rising steadily all day, so that defendant v. Kreiner, 109 Md. 361, 71 Atl. 1066, which had suficient notice to have enabled it to was an action for damage to poultry stored remove the goods to a safe place had it in the basement of defendant's warehouse, exercised proper care. Merchants' & M.


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