115 P. 313 | Cal. | 1911
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *653
This action was brought to recover damages from defendant for injuries caused to a building, the property of plaintiff. The damage was caused by an explosion of gas. This explosion occurred in a restaurant of a tenant of the plaintiff, Cressaty by name. The facts attending the explosion have recently been set forth by this court in its consideration of the case of Merrill v. LosAngeles Gas and Electric Company,
Trial was had before a jury. The defendant, as part of its evidence, showed that the gas leak being in a dark and obscure place, its employees approached the leak with an electric flash light and while the man holding the flash light was in close proximity to the leak the explosion occurred. The flash light used to inspect the leak was never recovered. It was probably destroyed by the explosion. But a similar flash light was introduced in evidence by the defendant and the contention was made that it was impossible for this flash light as used to give out any spark which would cause the ignition and explosion of the gas. It was also in evidence that an oil stove in the restaurant was burning at the time of the explosion and that this oil stove was some forty-four feet from the place where the gas was escaping. It was contended by plaintiff that the explosion was probably occasioned by a spark from the electric flash light and he introduced evidence to establish the fact that a flash light such as that before the jury could produce a spark. It was contended by defendant that the explosion was occasioned by the flame of the oil stove and that Cressaty, plaintiff's tenant, was negligent in not having extinguished the light of the stove after demand by defendant's employees that he do so. To demonstrate that the flash light could give out, and might have given out, a spark sufficient to cause the explosion, plaintiff in rebuttal of the evidence of defendant's experts to the contrary, put an expert witness on the stand who so testified. Asked to demonstrate before the jury how the spark could be produced and to produce it, he proceeded to unscrew the cap of the flash light and undertook to make a spark by the use of a pair of pliers. Under objection the court stopped this experiment, manifestly for the reason that to be of value to the jury, a spark should be produced from the flash light under conditions of use like those attending the explosion. Argument was indulged in before the jurypro and con over the possibility of so producing a spark, and the flash light was passed from hand to hand and inspected by the jury. While deliberating over their verdict *655
the jury requested to have with them in the jury room the flash light. The court permitted them to do so. Special interrogatories were submitted to the jury, amongst them one in answer to which it declared that the explosion was caused by a spark from the flash light and not from the flame of the oil stove. The general verdict was for plaintiff. Defendant moved for a new trial. The court denied the motion as to all grounds save one, and granted the new trial "on the sole ground that the court erred in sending in to the jury in their consultation room the flash light." The terms of this order eliminate from consideration the question of the sufficiency or insufficiency of the evidence to support the verdict. (Kauffman v. Maier,
The only express provision of the law bearing upon the right of juries to use exhibits or upon the right of the court to permit juries to use exhibits in their deliberations is found in section
It will be noted that depositions are excluded by the section. This is for the very obvious reason that depositions may, and usually do, contain matters not admissible in evidence which matters have been eliminated from the consideration of the jury. To permit the jury to take depositions with them would be to put them in possession of this excluded evidence. In this lies the suggestion of the true rule guiding the court and governing the jury in the use of exhibits. The court may permit the jury to take with them and use in their deliberations any exhibit where the circumstances call for it, observing the proper precaution of instructing the jury in the nature of the use which they shall make of the exhibit. It is a fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him. It is this fundamental rule which is to govern *657 the use of such exhibits by the jury. They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.
Typical instances of the improper and proper experimental use of exhibits by a jury are found, respectively, in Wilson v.United States, 116 Fed. 484, [53 C.C.A. 652], and Taylor v.Commonwealth,
In this state it was held in People v. Conkling,
In most of the cases, because of the very nature of the exhibit and of all the possible uses to which it may be put in the *660 jury-room, there is no occasion for the court to admonish the jury or to caution and limit it as to the nature of the use or experiment which shall be made. But where from its nature, it may be susceptible to improper use, as in the case of the can of opium, it is the duty of the court, by instruction to the jury, to limit and restrict that use.
Coming to the case at bar, it is certain that the trial judge conceived that he had fallen into error in allowing the jury to take with them and to experiment with an exhibit which they might subject to an improper use, without limiting the scope of their experiments by proper instruction. It will be remembered that the judge checked one experiment in the courtroom during its progress, and it is probable that he thought that by delivering the exhibit to the jury he had prepared the way for them to perform the very experiment which he had forbidden. Since a jury is not allowed to impeach its verdict by showing what improper methods it employed to reach it, the need of such cautionary instructions in a proper case becomes imperative, and we would by no means disturb the ruling of a trial court granting a new trial if it appeared that injury resulted from its failure to give such instructions.
But if, on the other hand, it could not have resulted in injury to the defendant even if the jury did perform an improper experiment and from it reached its conclusion that the explosion of gas was caused by a spark from the flash light, then clearly no new trial should be granted for an error which could not have resulted in injury. To this consideration we now come.
The special verdict that the explosion was caused by a spark from the flash light was not material to the case, and defendant's position would not have been bettered if the jury had found that the cause of the explosion was not the spark from the flash light, but the fire from Cressaty's stove. It is to be remembered that this is not Cressaty's action to recover, which might be defeated by proof of his own contributory negligence. It is the action of his landlord, and, unless it can be said that the landlord was responsible for the negligent act of the tenant so as to defeat the landlord's recovery, the statement just made is unanswerable. Upon this proposition something of what was said by this court in Merrill v. Los Angeles G. E. Co.,
It is next urged that the court erred "in taking the jury during their deliberations, and without the consent of the defendant or its attorneys, past the building which was damaged, and thereby affording said jury an opportunity of viewing said premises." The evidence upon this point discloses merely that the sheriff in charge of the jury, conducting the members to lunch, led them by an ordinary, natural and convenient route which happened to pass plaintiff's building. This was the only way in which the court "took the jury." The jury was not conducted past the building for the purpose of inspection. It does not even appear that they knew they were passing the building, much less that their attention was directed to it. The building itself had been repaired at the time and the circumstance was of so trifling a character that even if the case had been criminal it would not be a ground for disturbing the verdict. Thus Wharton lays it down that a mere casual visit of the jury to the scene of the resgestæ, as where the jury when taking exercise under the custody of an officer walked by such scene, is no ground for setting aside the verdict. (Wharton on Criminal Plead. *662 and Prac., 9th ed., sec. 834.) The proposition is fully supported by authority, and, certainly, the rule would be no more rigid in a civil case than in a criminal.
The measure of damages touching loss of rents was accurately given to the jury. (Linnforth v. San Francisco G. E. Co.,
The court instructed that the plaintiff was entitled to recover such an amount as the jury might find that "he really lost in rents by reason of the premises being destroyed by the explosion during such time as it would take with reasonable diligence to repair such building." It is urged that as the building was originally two stories in height and that the plaintiff had rebuilt it to but one story in height, and "as plaintiff never intended to restore the second story" it was error for the court to allow the plaintiff to recover as damages the rent lost during such time as it would take with reasonable diligence to restore it. We think respondent herein misconstrues the true meaning of the rule of damages. Plaintiff is not entitled to recover only in the event that he proposes to restore the building to its former condition. He had a two story building with a certain rental value until it was injured through the negligence of the defendant and he was *663 entitled to recover his loss of rents occasioned by that negligence up to the time when he could with diligence have restored the building, whether in fact he ever restored it or not.
This answers all of the grounds urged by respondent in support of the court's order granting a new trial. None of them, as we have undertaken to show, is tenable, and for the reasons given the order granting a new trial is reversed.
Lorigan, J., and Melvin, J., concurred.
Hearing in Bank denied.