55 Barb. 497 | N.Y. Sup. Ct. | 1870
The defendants’ counsel, before the jury in this case rendered their verdict, objected to its receipt on the ground that they had sent, while in their jury room, for some book, which was sent to them by the court without the consent of either of the parties. The presiding justice said, in answer to this objection, “It is proper that the counsel should understand the precise facts of the case. The jury said they wanted the annuity table, and I directéd the officer to take them the Code opened at the annuity table.” The objection was then overruled; the defendants’ counsel excepted, and the verdict was rendered. On the argument we decided that none of the other objections and exceptions were available to the defendants; that no error had been committed which would warrant us in disturbing the judgment, reserving however for consideration the alleged error'in allowing the jury to have the annuity table as already stated. .It may be observed here, that there is no evidence of the age of the plaintiff in the case, and that it does not appear for what purpose the jury desired the table, although it may be assumed that it was to assist them in estimating the damages which should be awarded to him. The authorities in this State bearing upon the question
In Hackley v. Hastie and Patrick, (3 John. 252,) it appeared that the jury took out with them a commission for the examination of certain witnesses, with the interrogatories and depositions annexed, a paper attached to which had been read in evidence on the trial, and that no consent of counsel had been given for the purpose. The defendants moved to set aside the verdict given for the plaintiff, for irregularity. It was shown, in answer to this motion, that the papers were not read by the jury, and the court said “the decisions on this subject, to be found in the books, are contradictory. Some of the ancient cases (as to these see Graham’s Prac., 2d ed. 313-315; Buller’s Nisi Prius, 308; Coke Litt. 227, b) are very strict, but of late years courts have been inclined to be less rigid, and to decide according to the real justice of the case. If the jury have never looked at the papers, nor have been influenced by them, there can be no just cause for setting aside the verdict.” The motion was denied. This is the first case in our courts that I have been able to find, and which, as suggested, was a departure from the rule which had prevailed theretofore. The next case is Thayer v. Van Vleet, (5 John. 111.) In that case, which went up on certiorari from a justice’s court, it appeared that the jury having retired to deliberate on their verdict, sent for the justice, and asked him if they could "add anything to the plaintiff’s demand, and he answered, “Ho.” This was held, nothing more having been done, not to be a sufficient irregularity to set aside the verdict. The court said in, substance, that the justice had answered a question of law. That the evidence justified the verdict. That there was no semblance of abuse, and that the consent of parties might be inferred. In Henlow v. Leonard, (7 John. 200,) which also came up on certiorari from a justice’s court, the plaintiff ip error contended'that there was an irregularity
In Bunn v. Croul (10 John. 239,) which came up on certiorari from a justice’s court, it appeared that after the jury had retired they requested the justice to inform them whether a certain point of evidence had been given, stating it to him, to which he answered that it had been given, and mentioned the witnesses who had testified to the fact. The court held that it could not be fairly inferred from the return, that the explanation given by the justice was by the consent or in the presence of the parties ; and that if it was not, the allowance of such a practice would be
In Neil v. Abel, (24 Wend. 185,) it appeared that the
These cases establish the rules prevailing in this State with sufficient precision to render it unnecessary to seek elsewhere for illustration; and the following are fairly deducible from them.
1. That if the jury take a paper which was given in evidence in the cause, with the concurrence of the judge, it is not error—that proceeding resting entirely in the exercise of a sound discretion by him. 2. That if the jury take a paper with the concurrence of the judge, though without the knowledge of the parties, and although it may not have been put in evidence, it is not error if it appear either that it was not read or used by them; or that, being immaterial in its character, it can be seen from an examination of the whole case that it could not have had any bearing upon the issues or the result. (See Graham, on New Trials, vol. 1, 76; Lonsdale v. Brown, 4 Wash. C. C. Rep. 148.) This is the more equitable rule, and is more in consonance with the familiar principle established by a series of cases, to the effect that if from the whole case the court can perceive that the admission of irrelevant or immaterial evidence could not have prejudiced the party complaining, the objection to it is valueless.,
The annuity table I regard as a paper only given to the jury at their request; and as there was no evidence of the plaintiff’s age, it would seem to be impossible, considering the amount of the verdict given in this case, that it could have been employed to the disadvantage of the defendants. The plaintiff was seriously injured and permanently disabled. He had been three months in hospital, and
There is, however, another difficulty which encounters the defendants, and that is that they have not presented the objection, which has been considered, in an available form. The objection was to receiving the verdict, but no motion was made to set it aside for irregularity, in which form the verdict has generally been assailed. (Howland v. Willetts, supra.) They might have requested the judge to instruct the jury that the table should be discarded from their consideration; and it may be that if such a course had been pursued it would have appeared that the table, though in possession of the jury, was not in fact used by them. I think, upon these grounds, the judgment should be affirmed.
Ingraham, Geo. G. Barnard and Brady, Justices.]