p. 160remarked to his opponent, that tho judge appeared to have received a communication from the jury and was writing an answer; to which his opponent replied that either party would have a right to except to such communication as part of the judge’s charge. Therefore neither counsel took any action. Afterwards the judge received a third communication, whereupon, he called counsel to the bench, and after discussion sent word to the jury, that he had no further communication to make to them, but that they might come into court, if they desired. Shortly after, the jury came into court, and without asking for further instructions rendered a verdict. The first two communications were not seen by either counsel, and their precise nature was unknown to the counsel for the defeated party, until after the jury was discharged, and the court adjourned.
Before Monell, Ch. J., and Sedgwick, J.express consent was not established.
A motion was made at special term to set aside a verdict rendered herein for defendant, for irregularity in the conduct of the trial.
The irregularity complained of, consisted in written communications having passed between the jury and the judge, of which the counsel was not apprised.
The facts suffici nitty appear in the special term opinion.
At special term an order was made setting aside the verdict, from which the defendant appealed to the general term.
Prickard, Choate, and Smith, Attorneys, and Wm. G. Choate, of counsel for appellants, urged:
I. Although the communications in this case were irreg
p. 162bar to consider on their verdict, in relation to the oral evidence or his instructions to them, unless it take place openly in court, or with the express consent of the parties,” is unobjectionable as a statement of what is the regular and formal mode of conducting a trial. That dictum is by no means an adjudication or decision that in every case where a communication is made tc the jury by the judge, “ not openly in court, and without the express assent of the parties,” a verdict will be necessarily set aside. Nor is it intended as a decision to that effect by the learned court. In that case there was no assent, express or otherwise. The question, therefore, was not before the court whether, without express assent, such irregularity avoids a verdict, or whether such an irregularity having happened, it can be cured or waived and in what manner. Moreover, the court in that case pointed out as the ground of their decision, that the communication made by the judge to the jury, was calculated to injure the party against whom the verdict was rendered. It was a communication on a material point. The commission of appeals, in their opinion point out that although the communication may have been true, yet the defeated party was, or may have been affected injuriously by it in the conclusions the jury may have drawn from it, and that if the question had been asked by the jury in open court, different and further communications might at the suggestion of counsel have been made.2. This court, in the recent case of O’Brien v. Merchant’s Ins. Co. (38 Sup’r. Ct. 482), held that where a paper went to the jury, which was not put in evidence, and without the knowledge of the defeated party, but which contained matters prejudicial to him, the verdict must be set aside, although it did not appear by what agency the paper got to the jury. And speaking of such an irregular communication, the court say, “It has been held' that when the jury were approached in
p. 164communication does not, per se, afford sufficient ground for setting aside a verdict. Hence there being no fixed policy of the law making irregular communications per se fatal, it follows that such an irregularity may be cured or waived by the act of the party, who after-wards seeks to avoid the verdict.II. There was in this case a clear waiver of the irregularity by plaintiff’s counsel.1. The circumstances stated in the opposing affidavit as to conversation between counsel while the judge had before him one of the two earlier communications, and as to what took place upon and after the receipt of the third communication are not denied. They are assumed to be true by Judge Sanford, and necessarily so, as nothing was shown to the contrary. The act and conduct on the part of the counsel for plaintiff clearly indicating acquiescence in the irregularity, is a waiver, provided the irregularity be one that can be waived.
It is obvious there were risks to the plaintiff in his insisting on having the jury called in and instructed on the point in question in open court. It appears that the view of the law taken by the judge on the point in question was unfavorable to him. He, therefore, deliberately let go the opportunity of setting the matter right, took his chance of the verdict as the matter stood, and is concluded by the result.5. It will hardly be contested that in the conduct of trials, the ordinary rule is that mere silence with knowledge of an irregularity or error concludes a party. The rule as to the necessity of an objection and exception to evidence, however objectionable it may be, to enable a party to avail himself of the mistake in admitting or receiving it, rests on this principle. So does the very strict rule as to exceptions to any part of the judge’s charge. The object of the exception is to call the attention of the court to the sup
p. 166is the meaning of the suggestion, while well enough as a rule to be administered in dealing with the judgments of justices’ courts by the superior courts, to save themselves trouble and keep these inferior courts straight, clearly went beyond the law, since it would, if literally applied, give a party the opportunity by other acts of clear acquiescence, while avoiding a formal consent, purposely to mislead the court into a belief in his acquiescence, and thereby avoid an unfavorable verdict by aid of his own fraudulent practices. All that the court really held on this point was, that mere silence of a party without objection, and with knowledge that the justice was going in to talk to a jury was not enough to show Ms consent. But even as applied to justices’ courts the rule of Taylor v. Betsford has been materially modified in later decisions, so that it has no application to a case like the present, where there are unequivocal acts of acquiescence, though without a formal consent. In Whitney v. Crim ( 1 Hill, 61 ), the jury having retired, the defendant told the justice that the jury wished to see him ; whereupon, both parties being present, and neither objecting, he entered the jury room alone. The jury wished to be discharged ; he told them they must make another effort. The plaintiff had a verdict, and Taylor v. Betsford was relied on as entitling defendant to a new trial. B boss on, J. : “What the defendant, in the court below, said to the justice, respecting the wish of the jury, to see him, amounted to little, if anything, short of an express consent that the justice should go into the jury room, and he ought not now to complain of the act. Taylor v. Betsford is an extreme case, and we ought not to go beyond it. This case is distinguishable from that, and we think the defendant’s objection should not prevail.” In Moody v. Pomeroy ( 4 Den. 115 ), [1847], the common pleas having on certiorari reversed a judgment of a justice’s court on the precise
p. 168quiesced in by him was that the judge was corresponding with the jury. And afterwards when he saw the third communication, he knew there had been two, and his acts then showed continued acquiescence.9. On account of this clear waiver by plaintiff’s counsel, the motion should have been denied, even if the communications were material.III. The motion should also have been denied, because on the undisputed facts the communications can not have injured the plaintiff.IV. It also appears that there have been already had two long trials, the first resulting in a disagreement ; that it is at least doubtful whether the plaintiff can recover at all on his evidence. These facts furnish a sufficient reason why this motion in this form should be denied, and the question raised here determined upon a case made, as is admitted in the opinion to be the better practice.If the plaintiff has made out no case, of what importance are the alleged irregularities ?Elliott F. Shepard, attorney and of counsel for respondent, urged:
I. Secret communications on the subject of the action by and between judge and jury, when the latter have retired to deliberate on their verdict, without notice to or consent of the counsel or the parties is illegal and voids a verdict. 1st. It is contrary to the fundamental law. Bill of Rights, § 8. U. S. Constitution, art. 7 (amd’t). 2d. It opens a door to the greatest abuses. If any such communication may be held, then a judge may secretly change his charge, charge on some point before not adverted to, direct a verdict, use his personal influence with the jury for or against either of the parties, bribe or intimidate the jury; and the jury, instead of squaring their verdict to their oaths, may substitute something else in place of their independent discharge of their duty.
p. 171mind. Here neither of these elements were present. 6. Even if the defendant’s counsel had, after the exchange of either the first or second communication, asked the court to call in the jury, and try to correct his own previous error, it would not have affected the plaintiff’s right to relief, nor altered the effect upon the jury of those communications. It is a stronger case than that of improper evidence once admitted, the correction of which by the judge, will not cure its effect. But counsel did not make any such request, nor did the court do it of his own motion. 7. The defendants are estopped, by their course upon first learning of these communications, from claiming that plaintiff either consented or waived.The order is affirmed upon the opinion, delivered at Special Term by Judge Sanford, with ten dollars costs, and disbursements to be taxed.
At Special Term.
Upon the argument of this motion, 1 was disposed to direct that it be brought on before the judge who tried the cause, upon his minutes of trial, or on a case regularly made and settled by him. In Nesmith v. Clinton Fire Insurance Co. ( 8 Abb. Pr. 141 ), this course was suggested-as proper, and the hearing of like motions, before a different judge from the one who tried the cause, was declared to be “ a practice to be discouraged.” But in this case, as in that, the material facts appear not less fully in the affidavits submitted than they would in a case, as they are substantially undisputed. I have, therefore, consented, with the approval of the learned judge before whom the trial was had, though not without embarrassment, to dispose of the motion on the papers presented, and thus save to the parties the expense and delay incident
p. 172to a further hearing elsewhere. I do so the less reluctantly in that a careful and extended examination of authorities has satisfied me that the question admits of but one solution : and, I may add, that the case above cited is, itself, a precedent for such action.
The cause has been twice tried, the first trial resulting in a disagreement of the jury. Upon the second trial, which commenced on the 10th and was continued until the 13th of January instant, a verdict was rendered for the defendant, which is now sought to be set aside for irregularity.
The action was brought to recover damages for personal injury sustained by the plaintiff, a lad employed by defendants, through their alleged negligence in the faulty construction and management of a lift or elevator, in use at their factory. After the charge of the court had been delivered permission was accorded to the respective parties to take such exceptions thereto, as they might thereafter be advised, and the jury retired to deliberate. The court, thereupon, proceeded with the trial of another case, counsel on both sides remaining in the court room to await the verdict. While engaged in their deliberations, and before a verdict had been agreed upon, the jury addressed to the judge a written communication which was brought in by an officer and handed to him, and to which he responded in writing.
That communication and the response thereto were as follows
Q. “ When Mr. Eckhart notified Mr. Dunn that the elevator was dangerous for the use of boys was Dunn negligent in law in not notifying the Appletons, and were the Appletons thereby made responsible in law?” “ Ans. Appletons were not liable, even though Dunn was notified.”
The attention of counsel does not appear to have been in any way attracted to this correspondence.
p. 173A second written communication was subsequently addressed by the jury to the judge, which was in like manner responded to by him as follows :
Q. “If Mr. Dunn "was not a competent superintendent, does that make the Appletous liable?” Ans. “All the evidence was that Dunn and the other servants were competent. I charged that being so, the Appletons were not liable. The jurors must find accord in g to the evidence in the case.”
While such second communication from the jury was in the hands of the judge, and before he had replied thereto, the plaintiff’s counsel, who was sitting near the counsel for defendants, privately remarked to him, that the judge had received some communication from the jury and was writing an answer thereto, and inquired vs hether they ought not to know what it was. To which defendants’ counsel replied that of course either party would have the right to except to such communication as part of the judge’s charge. The judge afterward sent out his answer to the jury, in the presence of counsel, without objection irotn either, and without any attempt, on the part of either, to ascertain wdiat the communications were.
Aiterwards, and when the jury had been out altogether for about three hours, they addressed to the judge a third communication in writing, to the following effect:
Ques. “Does the judge mean by his last communication that the jury are not to consider the competency of Mr. Dunn ? ”
On receiving this inquiry, the judge called counsel on both sides, to the bench, and informed them of its import; whereupon a discussion ensued as to what further communication, if any, should be sent to the jury in answer to the above message from them. This .discussion resulted in the judge’s sending word to the jury that he had no further communication to make to
p. 174them, but that they might come into court if they desired. Very soon after, the jury came into court, and being interrogated as to whether they had agreed upon a verdict, answered that they had, and thereupon rendered their verdict for defendants.
Counsel for the defendants insists that the instructions contained in these communications were in no respect at variance with the charge as originally delivered, and that during the discussion above referred to, the plaintiff’s counsel made no objection to the judge’s having communicated with the jury as aforesaid. It appears, however, from the moving affidavit on the part of the plaintiff, that the two communications were not seen by, and that their precise nature was unknown to plaintiff’s counsel, until after the discharge of the jury and the adjournment of the court.
• Counsel for defendants now stipulates that exception may be. taken to the said "written instructions, as a part of the charge, and it will be assumed, for the purposes of the motion, as contended by him, that the rules of law, laid down in the said communications as applicable to this case had been on the trial fully and freely discussed and determined by the court as the law of the case, and had been clearly expressed in the charge, as originally delivered.
The course pursued by the learned judge with respect to the final communication received by him from the jury was in accordance with the well settled » and established usage and practice of the common law, as administered in England and in this State. Had it been adopted in the first instance, the proceedings would not have been open to adverse criticism.
In Burrows v. Unwin (3 Carr. & P. 310), which, like the present, was an action on the case for negligence, the jury, after their retirement, sent in a message desiring to have a certain law book sent to them from the library of the court. Lord Tenderden, C. J.,
p. 175asked the counsel, on both sides, if they objected, and they answered that they did not. His lordship, however, observed: “The
regular way is for the jury to come into court and state their question and receive the law from the court,
and for the sake of precedent, that course should be adopted now.”
The rule thus recognized and from which, on grounds of public policy, his lordship was unwilling to depart, has been so far relaxed by our own courts, as to admit of written instructions being sent by the court to the jury, at their request, if both parties expressly consent; but I have been unable to discover any reported case in which, without such consent, communications of the kind have been sanctioned or countenanced. It has even been held "that such consent must be affirmatively proved and may not be inferred. “ The history of the law,” as was well observed in the case of ‘O’Brien v. Merchants’ Fire Ins. Co. (38 N. Y. Superior Ct. R. 482), ‘1 discloses a struggle for centuries, to prevent juries from being approached by improper communications;” and I think it as essential to the important and effective administration of justice that the opinions and instructions of the court should be openly and publicly imparted, so far as litigants are concerned, as that the deliberations of the jury should be conducted with secrecy and in seclusion. Repeated infractions of this salutary rule in exceptional instances, varied in accordance with the exigencies of each particular case, would gradually fritter it away, and ultimately effect its complete abrogation. It should be permanent a’ d immutable. If trial by jury is to “remain inviolate forever,” every safeguard to its sanctity must be jealously upheld.
In Sergeant v. Roberts ( 1 Pick. 337 ), a verdict was set aside, under analogous circumstances, notwithstanding that the course pursued by the court had the sanction of an old local practice. That practice was
p. 176condemned as “ dangerous to the rights of parties and opposed to the spirit of the common law, which demands that everything given to a jury, in relation to a case before them, should be given in open court, in the presence of all interested or authorized,, for criticism, for suggestion, to guard agai'nst injustice and error, and to afford the means of remedying or correcting them.” Like views were expressed, and a Jike result ensued in Merrill v. Nary ( 10 Allen, 416 ), and in Slate
v. Smith ( 6
R. I. 33 ).
The decisions of our own courts are undeviatingly to the same effect, and mainly upon the ground that “ such a practice would be dangerous ” (Bunn v. Croul, 10 Johns. 248 ; Taylor v. Betsford, 13 Id. 487).
In the case last cited, the court refused to inquire whether the information given by-the justice was material or had any influence upon the jury. The practice was condemned as dangerous and improper, and one that “ ought to be guarded against ” (see also Rogers v. Moulthrop, 13 Wend. 274 ; Moody v. Pomeroy, 4 Denio, 115 ).
The cases of Bunn v. Crowl, and Taylor v. Betsford, were approved in Watertown Bank v. Mix ( 51 N. Y. 558 ), where it was said that “ There ought to be no communication between the judge and the jury after they have gone from the bar to consider of their verdict in relation to the oral evidence or his instructions, unless it take place openly in court, or with the express assent of the parties.”
Under this- explicit and authoritative exposition of the law, the verdict must be set a,side, not alone on the ground that the rights of the parties to the particular suit have not been fully protected and preserved, but upon broad grounds of public policy, and because, as was said by this court, in O’Brien v. Merchants Fire Ins. Co., above cited “not to set aside the verdict would establish a precedent which
p. 177would tend to impair the upright and faithful administration of justice.”
Verdict set aside, and new trial ordered with ten dollars costs of motion, to abide the event, and to be taxed in favor of the successful party, with his costs in the cause.