34 Haw. 632 | Haw. | 1938
This is an action on a case for personal injuries. Verdict was for the defendant. Plaintiff's exceptions present for review the denial by the trial court of his motion for a new trial upon the following grounds: 1. that the court erred in allowing the jury to continue their deliberations after they had requested that the reporter read certain of the testimony of the plaintiff, which request was not complied with due to the absence of the reporter; 2. that the jury were guilty of misconduct in their deliberations in that, against the specific instructions of the court, they conducted an experiment which was prejudicial to the plaintiff and which experiment and its result were considered by the jury in reaching their verdict. The alleged misconduct of the jury was not called to the attention of the trial court prior to verdict and then only upon the filing of the motion for a new trial.
This court of its own motion raised the preliminary question of whether it should consider the alleged error involving misconduct of the jury, the movant having failed to show affirmatively by his motion for a new trial or otherwise that the alleged misconduct was not known to the defendant's counsel before verdict.
The occasion of the alleged misconduct was a view by the jury of the locus in quo. Neither the trial judge nor counsel were present, the jury being in the custody of the *634 clerk under instructions of the court. The trial of the case had been concluded and the cause submitted to the jury. The jury had been taken to lunch at 12:03 p.m. and after lunch repaired to the scene of the accident. After view the jury were returned to the courthouse and retired to consider their verdict. The exact time at which the jury returned from the view does not appear. But the clerk's minutes admit of the inference that it was about 2:30 p.m. The verdict was returned the same day at 8:30 p.m. The plaintiff in his affidavit filed in support of his motion for a new trial averred that he had no knowledge of the facts constituting the alleged misconduct until after the verdict was returned by the jury. It nowhere appears, however, that his counsel were equally ignorant. The affidavit of the clerk of the court who accompanied the jury, filed by defendant in opposition to the motion, discloses that shortly after the jurors returned to the courthouse to deliberate upon their verdict he made a detailed verbal report to the judge who presided at the trial of what had occurred at the view, including the acts constituting the alleged misconduct, and recorded the same in his minutes. The minutes of the court contain a full and complete recitation of what occurred upon the occasion of the view, including the acts constituting the alleged misconduct. Their brevity is such that they were undoubtedly complete prior to verdict.
It is a general rule of practice that misconduct occurring upon
a trial, whether by the jurors or others, must be brought to the
attention of the court as soon as discovered and unless objected
to, it cannot be relied upon as error upon a motion for a new
trial. (Whallen's Executor v. Moore,
The other ground of the motion, namely, that the court erred in allowing the jury to continue their deliberations after they had requested that the reporter read certain testimony of the plaintiff, which was not complied with due to the absence of the reporter, has little to commend it as a ground for setting aside the verdict in this case.
The request was communicated to the court at 5:20 p.m. It was merely that "certain testimony" of Mr. Alfred C. Medeiros be read to the jury. The portions of the testimony desired or the purpose of the request do not appear. The official reporter who reported the evidence of plaintiff was absent and the court immediately advised the jury through the bailiff that the testimony of the plaintiff was not then available. Apparently the jury was advised of the situation. Nevertheless the jury continued with their deliberations. In the meantime every possible effort was made to secure the presence of the official reporter who reported the required testimony but without success. Finally at 8:30 p.m. while the search for the missing reporter was still in progress the jury brought in their verdict.
The presiding judge's explanation of the circumstances is as follows: "The court was advised at approximately five o'clock that certain testimony was desired by the jury to be read to them and the court instructed the clerk to inform the bailiff to pass the word in to the jury that at the present time, being 5:30 or thereabouts, the reporter who had taken such testimony was not then available. The court further, thru its clerk, instituted a call to be put thru at various places in the city with a view to locate the reporter whose service it was that took down the testimony and the search was being continued for the availability of such evidence by the reporter and no further word came to the court subsequent to supper, — after the jury had been sent to supper at six o'clock, — no further *637 word came from the jury that they could not proceed further without the testimony. On the contrary the jury continued with its deliberations and the verdict has now been presented to the court at the request of the jury itself. * * * There was no indication from the jury that its deliberations were being blocked by the absence of such testimony. The court would certainly have instructed or requested the jury to withhold further deliberation if they could not proceed without it. Apparently the jury solved its own difficulty without any additional instruction or direction of the court as to their being required to finish the case regardless of that evidence."
The court did not refuse to have the desired testimony read to the jury. On the contrary it endeavored to comply with the request and was engaged in trying to locate the reporter when the verdict was returned into court. The only thing that the court could have done, that was not done, was to have forthwith suspended the deliberations of the jury until the desired testimony became available. But in our opinion the circumstances were not such as to require such action on the part of the court. It does not appear that the jury were in disagreement as to the testimony given by plaintiff or that they could not arrive at a verdict because of such disagreement. Whether the subject matter to which the request related was vital to the issues is unknown. There was nothing to indicate that the deliberations of the jury were being obstructed by the absence of the testimony. Apparently the desire to have the testimony of the plaintiff reread was not extreme. After the first request no further or additional requests were made. The jury no doubt concluded to continue their deliberations without the assistance that the rereading of the desired testimony might afford. Had the absence of this evidence prevented further deliberations, the jury no doubt would have voiced their insistence. *638
When a jury is deliberating the court reporter who reported the
evidence should remain on call and available in case need is
found for his services. The instant case shows a necessity of the
observance of this rule. But the jury were not entitled to have
this evidence read to them as of right. In the absence of statute
requiring the use of the stenographic notes of the evidence, the
refusal of the trial court to have read to the jury, upon the
request of the latter, notes of the stenographer of testimony
taken upon the trial is not error per se. The disposition of
such request is a matter resting entirely in the sound discretion
of the court. (64 C.J., T. Trial, § 840, p. 1045; Texas P. Ry.
Co. v. Guidry, 9 S.W. [2d] [Tex. Civ. App.] 284; Isreal v.
Fanchon Marco, 58 S.W. [2d] [Tex. Civ. App.] 774;
Metropolitan Life Ins. Co. v. Smith, 181 S.E. [Ga. App.] 804,
807; Patterson v. Phillips,
The exceptions are overruled.