Plaintiffs in error instituted action in the circuit court of the city of St. Louis, Mo., against the Wabash Railway Company for damages in the sum of $61,240.72, arising from the destruction of a certain stock of lumber, a planing mill, machinery, and equipment, lumber sheds, fence, railroad switch, and other property, of which they were the owners, situated on a tract of land adjacent to the right of way of the Wabash Railway Company, in the city of St. Louis, Mo. It was claimed that the same were destroyed by a fire communicated by a locomotive engine used by the railway company upon its railroad. The action is predicated on the Missouri statute with reference to responsibility of a railroad corporation for damages caused by fires commenced from its locomotive engines.
Defendant in error denied its responsibility for the fire, and further claimed in its answer to the amended petition that the plaintiffs in error had been fully compensated for whatever claim or right of action they might have had against the defendant in error on account oO the fire, and had transferred and assigned such claims to certain persons and insurance corporations not entitled to sue thereon; that plaintiffs in error were not the real parties in interest, and were not entitled to maintain the suit on behalf of themselves or said corporations.
The ease was removed by defendant in error to the United States District Court for the Eastern District of Missouri, Eastern Division, and there tried. The jury returned a verdict for defendant in error, and judgment was duly entered thereon.
Various assignments of error are urged. Assignments 1 and 8 may properly be considered together, as the ultimate question involved in each is the same, viz. the effect upon the jury of the attempt to get before them the fact that the insurance companies had paid the loss, and that the contest in the court was really between such companies and the railway company. Plaintiffs in error argue very earnestly that this situation prejudiced them and prevented a fair trial, and that, notwithstanding the charge of the court, which sought to eliminate any impression created concerning parties in interest, the damage done was not remedied.
The first error assigned relating to this is the failure to sustain the motion for a separate trial upon the issues raised by defendant in error in its answer as follows: “That before the commencement of this suit the plaintiffs sold, transferred, and assigned whatever claim or right of action they might have had against the defendant on account of the fire mentioned in the petition to certain persons and corporations, and the plaintiffs are therefore not the real parties in interest in this suit, and not entitled to maintain this suit.” The eighth assignment alleges the error that defendant in error was permitted to introduce evidence of the fact that plaintiffs in error carried insurance on the property destroyed and were reimbursed for said loss by the insurance companies.
The motion for separate trial was not made, considered, or ruled on in the presence of the jury. At the commencement of the trial the amended answer was read to the jury without objection, and in this way it was apprised of the claimed defense that the cause of action had been assigned. Later in the trial the following took place with reference to this matter (witness Hill upon the stand) :
“Q. Mr. Hill, your property was insured, was it not?
“Mr. Williams: We ‘object to that, if the court please. We don’t think it is proper.”
*628 The court promptly sustained the objection. The reading of the answer to the amended petition and this question asked the witness Hill were apparently the only attempts made to get before the jury the question as to insurance companies having an interest in any recovery. .There was evidently no argument on this subject to the jury, or reference thereto, or the record would have so shown. The court endeavored to guard this question carefully in its instructions, evidently believing that sueh question, under the record made, should not in any way be before the jury, saying to them: .
“Something was said in the answer, and perhaps some evidence came in, from which you got the idea that this loss, either in whole or in part, was covered by insurance. I charge you that, under the law and the facts in this case, it does not make any difference whether it was covered by insurance or not. I need not go into the reason or the intricate law which governs this conclusion touching which I charge you so definitely, because it might obscure the issues and give you trouble. I merely say to you that, under the law and the evidence in this ease, I charge you as a matter of law, that you are not to consider at all, or at any length, or for any purpose, the fact whether there was insurance or not. With that fact, whether it existed or did not exist, you have utterly nothing to do under the issues here, under the law here, and under the facts here.”
This action arose and was tried in the state of Missouri. Section 1401, Revised Statutes of Missouri 1919, provides as follows: “Where there are several causes of action united in a petition, or where there are several issues, and the court shall be of the opinion that all or any of them should be tried separately by the court or jury, it may, on the application of either party, direct separate trials.” This statute has been construed by the Missouri courts as placing a discretion in the trial court as to whether the issues in a case shall be tried separately.
In Sexton v. Anderson Electric Car Co. (Mo. App.)
Being a matter of procedure under the Missouri statute, and no federal question being involved, the construction of the statute by the appellate courts of Missouri is controlling. Pacific American Fisheries v. Hoof (C. C. A.)
In this case there could be no abuse of discretion in the court’s action refusing to separate the issues for trial, unless sueh action of necessity resulted in getting before the jury improper matter creating an erroneous impression, that could not be eradicated by the instructions of the court or the withdrawal of the same from the consideration of the jury. The objection of plaintiffs in error is not so much to the technical ruling refusing a separate trial as to the claimed result that sueh action created the possibility of getting before the jury alleged prejudicial matter, and that sueh possibility was realized.
It is earnestly urged that the jury was saturated with the idea that the controversy in the ease was between the railway company and the insurance companies. We think such claim is not sustained by the record. The answer, as before stated, to the amendment to plaintiffs in error’s petition was read to the jury. The statements of this answer, however, were not facts in evidence. The question asked of witness Hill with reference to insurance on the property was not answered, the objection thereto being sustained. Under the theory of the ease adopted by the court, sueh question was improper, and should not have been asked, and, had sueh questioning been persisted in with the evident intent to get improper evidence before the jury, it would warrant seri *629 ous attention by an appellate court. The question, however, was asked but once, and of but one witness. The matter was not again referred to anywhere before the jury in the trial, except in the instructions of the court, and no evidence whatever on the subject was introduced over the objection of plaintiffs iu error, who seem to feel that the asking of the question of Hill as to insurance and the reading of the answer created the same effect as if the evidence was actually introduced.
Plaintiffs in error do not question the general rule that error in the introduction of evidence is cured by the withdrawal of the same by the court before the conclusion of the trial or by a clearly presented instruction to the jury to disregard it, as held in Penn. Co. v. Roy,
Reliance is placed on the exception to the general rule that an error in permitting a matter to eomo before the jury may be so deep-seated that it cannot be cured by an instruction of the court, and hence would constitute reversible error. In Maytag v. Cummins,
In Throckmorton v. Holt, supra, the court said: “But yet there may be instances where such a strong impression has been made upon the minds of the jury by illegal and improper testimony, that its subsequent withdrawal will not remove the effect caused by its admission, and in that case the general objection may avail on appeal or writ of error.” In this case evidence of several witnesses was given on the point in dispute “after much opposition and long argument as to its admissibility.” Undoubtedly there may be instances where incompetent or immaterial evidence admitted over objection may create such an impression upon the minds of the jury that an attempt of the court in its instructions to eradicate such impression is unavailing. The attempt to withdraw such evidence from the consideration of the jury may ho like the attempt to recall a bullet that has been shot. The damage ofttimes cannot be repaired and the fairness of the trial is destroyed.
We think this ease does not present any such situation as discussed in the various eases cited. As plaintiffs in error did not object to the reading of the answer, there is no basis for complaint as to any statements therein. Besides, such statements are not evidence. The mere asking of the question of witness Hill, with no answer thereto, is hardly sufficient to sustain a claim that the trial was permeated with the idea that the contest was between the insurance companies and the railway company. Further, whatever impressions may have been created by the question to Hill in connection with the reading of the answer was eliminated by the very careful, emphatic, and clear instruction of the court on the subject.
Assignments of error 2 and 3 refer to the action of the court in sustaining objections to questions asked the witness Kaiser. The complaint of assignment of error No. 2 is that the court sustained an objection to a question asked said witness as follows: “Now, between the plant and the right of way, is there any grass, or was there grass, in 1917, and prior to that?” The court, in sustaining the objection that it was incompetent and too remote, said: “There is no use confusing the issues hereby showing what were the surroundings of the Wagner Electric plant, because they are not suing, unless you are going to connect it up by showing that fire got off the right of way over to the Wagner plant, and was thence communicated to their plant, but I don’t understand that to be your theory.” * To which counsel for plaintiffs in error replied: “No; that is not the theory. I am simply trying to show what had occurred on times theretofore with reference to some of these plants being adjacent.” We see no particular harm resulting from this ruling of the court, nor would there have been any in permitting the question to be answered. There was *630 plenty of evidence in the record of grass being along the right of way to which a Are might have been communicated, and the fact that there was grass along the Wagner Electric plant property on the east side of the railway in the year 1917, and prior thereto, was not a circumstance of vital importance.
As to assignment of error No. 3, plaintiffs in error made an offer to prove the following: “I offer to prove by this witness that, at numerous times while he was in the employ of the Wagner Electric Manufacturing Company, whose property is situated along the right of way of the Wabash Railway, the defendant herein, a distance of 2,600 feet in the vicinity of the plant of the plaintiffs herein, he (this witness) was called upon to extinguish fires along the right of way of the .defendant, which fires were caused by sparks flying from the locomotives of the defendant, and that he has frequently observed sparks being emitted by the locomotives passing along, in front of, and adjacent to and parallel with the property of the Wagner Electric Company.” Objection being made it w^s sustained by the court.
It was urged by eounsel that this ruling of the court was error under the decision of the Supreme Court, in Grand Trunk R. Co. v. Richardson,
The fourth assignment of error, not being argued, is waived (Braden v. U. S. [C. C. A.]
The sixth assignment of error raised questions as to the ruling of the court permitting the witness Swofford to testify as to what witness Terry had stated to him concerning the fire. The question and answer are as follows: “Q. Mr. Swofford, Mr. Terry has testified with reference to information given you as to what he observed of a fire in the Hill-Behan yard. You may tell the jury what he said to you at the time. * * * A. Well, as we were passing the extreme north end of the lumber yard, Mr. Terry said to me: ‘I saw a little fire back there at the edge of that lumber yard.’ I said: ‘You did? What did it look like?’ He said: ‘Oh, it was a little fire.’ About that time we were,going on, but I stepped over to his side to see if I could see anything of it. I didn’t see anything of it, and I stepped back in my place, and I got to thinking that was awful close to a lumber yard, awful — ” The court was of the opinion that witness Swofford could testify as to what Terry told him, on the theory that it was a part of the res gestee. Whether admissible under the theory of res ges *631 tas is a debatable question. It is unnecessary to determine it, because under tbe condition of the record there could have been no prejudice whatever to plaintiffs in error in permitting tbe witness, Swofford, to state what Terry told him. The record discloses the following situation: Terry had testified fully as to seeing the firo at the edge of the lumber yard. Tbe court permitted him also to testify that he communicated information of what he saw to Swofford but did not permit him to relate the conversation. Plaintiffs in error saved no exception to the ruling of the court on this question. Hence the jury had before them the facts that Terry related as to seeing the fire in the lumber yard. Further, they had before them the fact that Terry had communicated to Swofford what he had seen. For Swofford, therefore, to relate what Terry had told him conveyed no new information to the jury. The matter was all before them, and the relation of it was merely cumulative, and, if erroneous, was therefore without prejudice.
The seventh assignment of error is with relation to the overruling of plaintiffs in error’s motion to strike from the record the entire testimony of defendant in error’s witness, Herring, with reference to the condition of the locomotive on October 16, 1917. It is sufficient answer to Ibis to say that tbe motion sought to strike out all of the testimony of the witness, when some of it was clearly competent and material. It is an elementary proposition of practice that objections to testimony en masse are not available, nor is a motion to strike all the testimony of a witness, when some of it is material, sufficient to reach the immaterial evidence sought to be eliminated. The court must be advised by the motion of the specific evidence sought to be reached, and unless so advised is not required to scan the entire evidence, and segregate the material from the immaterial.
The ninth assignment of error relates to the following instruction given by tbe court, the jury being recalled after it had retired and had been out over six hours: “The court further instructs you that although the verdict must be tbe verdict of each individual juror, and not a mere acquiescence in the conclusion of his follows, yet you should examine the questions submitted with candor, and with a proper regard and deference to the opinions of each other; it is your duty to decide the case, if you can conscientiously do so; you should listen with a disposition to be convinced to each (other) other’s arguments; if much the larger number are for one party, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men equally honest, equally intelligent, with himself. If, upon the other hand, the majority are for the other party, the minority ought to ask themselves whether they might not reasonably doubt tbe correctness of a judgment which was not concurred in by the majority.”
Counsel’s main argument for reversal is based on the action of the court in giving this instruction, which is termed a “mandatory instruction.” This instruction, or similar ones, have been the subject of considerable discussion by the courts. The particular instruction in this ease is substantially the same as the one approved by the Supreme Court in Allen v. United States,
This court, in St. Louis & S. F. R. Co. v. Bishard,
In the Allis Case in the trial court the instruction was given by Judge Sanborn. The jury had been out 24 hours, and apparently were unable to agree. The words, “equally honest, equally intelligent with himself,” complained of here, are used in Judge San-born’s instruction. Tbe Supreme Court referred to this charge and said it was eminently fair. In that case the court, speaking of recalling a jury after they had been deliberating for some time for the purpose
*632
■of assisting them in the solution of their difficulties said: “It would be startling to have such action held to be error, and error sufficient to reverse a judgment.” It may be noted that in the Allen Case,
In the ease of Burton v. United States,
In Peterson v. United States,
From these decisions the conclusion is apparent that the court has the right to attempt to assist the jury by proper instructions in reaching a verdict without intruding on the fundamental right of the jury to determine fact questions. The court has no right to coerce a jury into a verdict, or to attempt to do so. The important thing in a case is not the mere agreement of the jury, but the correct determination of the issue involved. All parties to the controversy are entitled to the uneoerced judgment of the jurymen, and the test of such an instruction as herein complained of is whether it is in fact an attempt to assist the jury or to coerce them. If it is an attempt to break down the individual judgment and honest conviction of a juryman in order merely to reach a verdict, it is erroneous; but if it is an admonition or request to the jury to reason together, to consider one another’s views, and attempt to reach a conclusion, it is entirely proper. Some of the courts, out of an abundance of caution, guard the matter by including in such an instruction a statement that the minority jurors are not required to yield their honest conviction for the sake of reaching a verdict. Courts should be careful not to infringe upon the jury’s prerogatives as triers of fact questions, and not attempt to induce jurors to give up their individual judgment on a fact question by creating the impression that such is the desire of the court. Similar instructions to the one in question here have been approved, as we have pointed out, by the Supreme Court and the federal courts quite generally.
. The instruction must be taken also in connection with the other instructions of the court. The jury were told in such instructions that they were the sole judges of the testimony of the witnesses, and this language was used: “If what I say agrees with your views, you are at liberty to follow what I say. If you do not agree with me, it is not only your privilege, but your duty, to follow your own consciences and convictions, and utterly set at naught what I shall say.” The instruction was not objectionable as to substance or form. There was no attempt by it to coerce any juryman into agreement to a verdict by a surrender of his individual conviction.
The question remains: Was it error to give it within such a short space of time after the case had been submitted to the jury? It is pointed out by counsel for plaintiffs in error that such instruction has never been given where the jury had only been out for 6% hours. We have been unable to find, after a somewhat diligent search, any case where the space of time was as short as here. Of course, the court must wait a reasonable time before giving such instruction; but we think the mere matter of time is not of controlling importance. In the Allis Case in the Supreme Court, hereinbefore referred to, that court said: “The time at. which such a. recall shall be made, if at all, must be left to the sound discretion of the trial court, and there is nothing in the record to show that the court, in the case at bar, abused this discretion, or failed to wait a reasonable time for the consideration of the ease by the jury under the charge as already given.”
The trial court has better knowledge of all the circumstances surrounding a ease than an appellate court. It will not be presumed that the trial court is sacrificing justice to speed. The question of when such instruction shall be given is a matter resting within its sound discretion, and unless there is abuse thereof, it is not the subject of review. While the time here was less *633 than in any of the eases reviewed, where such instruction has been given, and while it may have been slightly premature, we are not prepared to say that it was an abuse of; discretion.
We find nothing in tho various assignments of error to warrant a reversal of the judgment entered by the trial court, and the same is affirmed.