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of anything going to show to the contrary it must be presumed that the action of the court in the premises was unobjectionable. Hughes v. Wheeler, 76 Cal. 230, 18 Pac. 386; Hayne, New Trial & App. § 285, p. 843; Koehler v. Cleary, 23 Minn. 325; Chinn v. Davis, 21 Mo. App. 363; Hollinsead v. Mactier, 13 Wend. 276.

fore the sale, the plaintiff advanced to the defendant $720, through checks of J. E. Lewis & Company, the style of the former firm, and coal to the value of $60.75. This action is brought to collect these charges. No mention was made of this account at the time of transfer of the share of the deceased in the partnership, and the plaintiff did not then inform the defendant that

Rugg, Ch. J., delivered the opinion of the she would be required to pay it. No refercourt:

The plaintiff and the husband of the defendant were copartners in the coal business. The defendant was appointed administratrix of the estate of her husband. After some negotiation an agreement was reached whereby the plaintiff bought the share of his deceased partner in the business for $40,000. An "indenture of sale" was executed by the defendant both as administratrix and individually, transferring to him all the right, title, and interest of the estate of his former partner in the firm assets, including all accounts and bills due to the copartnership, he assuming all its debts and obligations. In the meantime, after the decease of the husband, but beupon the judge entered the jury room, closed the door, and held some communication with them, and then reported to counsel that the jury wanted further instruction, and that he informed them that he had given them all the instructions upon the law which he was able to give, and counsel then suggested that he ascertain upon what points they desired instruction, whereupon the court and the attorneys for both parties entered the jury room and the court inquired of the jury upon what point they desired instruction, and explained the matter upon which they were having difficulty, a judgment was affirmed, inasmuch as nothing hurtful to the parties complaining occurred during the time the judge was alone with the jury, and during all the remaining transactions the counsel were present, and no exception was taken to the additional instruction given.

In Continental Casualty Co. v. Ogburn, Ala. -, 64 So. 619, it was held that the fact that a member of a jury went into the clerk's office and held a conversation over the telephone with the presiding judge, who was at his home, concerning the inability of the jury to agree, was not reversible error, but the court said: "We think it would be safer, however, for trial courts to communicate with jurors in all instances in a body and in the presence of counsel when practicable."

In State v. Borchert, 68 Kan. 360, 74 Pac. 1108, where the jury sent a written communication to the judge asking if a verdict of guilty accompanied with a recommendation for mercy would be received by the court, and the judge, without calling in the jury or notifying the parties, answered on the same piece of paper in the affirmative,

ence is made to the matter in the indenture of sale. The evidence was in conflict touching the point whether before the sale bills therefor had been sent to the defendant and a demand for payment had been made upon her.

The jury were instructed in substance that they were to determine on all the evidence whether both the plaintiff and the defendant understood that the personal account against Mrs. Lewis here in suit should be wiped out. Various requests for rulings by the defendant presented in different forms the proposition that the plaintiff as surviving partner was under a general duty to make full disclosure of the affairs of the partnership to the defendant. Howthe verdict was sustained, because the communication related only to the form of the verdict, and the facts failed to indicate that defendant could have suffered any prejudice from what took place.

Where, after a jury retired to deliberate on its verdict, and while the court was in session, and in the presence of both counsel, the court officer handed to the court a paper which was a communication from the jury, to which the court made no reply, it was not error for the court to refuse to inform defendant's counsel as to the nature of the communication. People v. Sauerbier, 173 Mich. 521, 139 N. W. 260.

See also Whitney v. Com. 190 Mass. 531, 77 N. E. 516, which is set out sufficiently in LEWIS V. LEWIS.

In Wichita Falls Compress Co. v. Moody, Tex. Civ. App. -, 154 S. W. 1032, where a jury was deliberating in a room opening out from the court room where the court was trying another case, the door of the jury room being in view of the court, and the jury sent to the judge written communications asking him questions which he answered on the same slip of paper, signing his name, and directing them to retain the slip, the appellate court, while stating that it did not approve the practice, said that it felt constrained to hold that there was a substantial compliance with a statute which provided that when the jury wished to communicate with the court, they should be brought into open court in a body and, through their foreman, state to the court verbally or in writing the questions of law upon which they desired further instructions, and that any further instructions should be given in writing. R. L. S.

place between the judge and the jury after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the cause. The only sure way to prevent all jealousies and suspicions is to consider the judge as having no control whatever over the case, except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice."

ever sound in law these requests may be, no communication whatever ought to take they were not germane to the issue raised. Here was no question of concealment, fraud, or misrepresentation. It is not contended that the price agreed upon for the sale of the partnership interest was not fair. There was no doubt about the fact that the items in the plaintiff's account had been furnished to the defendant. The real point of disagreement was whether the parties intended to extinguish liability for these items by transactions connected with the sale. The presiding judge performed his duty by stating the simple issue and leaving it to the jury as a plain controversy of fact far better than by undertaking to lay down principles of law more or less remotely connected with the general relations of the parties, but which had nothing to do with the matter in dispute. No error is disclosed in the requests refused or in the rulings given.

The troublesome aspect of the exceptions is this: After retiring for deliberation, the jury sent a written request for information to the judge, who was in his lobby. Without causing the jury to be brought into open court, and without returning to the court room, he gave an answer in writing, and thereupon the jury returned a verdict for the plaintiff. Both parties, with their counsel, were in the court room during the entire period from the time when the jury retired until the verdict was returned. The nature of the communication was not given out, is not disclosed on the record, and the excepting party is ignorant of the contents of the communication from the jury to the judge and from the judge to the jury. Immediately upon learning these facts the defendant filed a motion for a new trial founded upon them. After a hearing the judge denied the motion, filing therewith a statement printed in the footnote. 1

It is plain that apart from Stat. 1913, chap. 716, this irregularity would have required a setting aside of the verdict. This was settled in 1823 by Sargent v. Roberts, 1 Pick. 337, 11 Am. Dec. 185, where, in an illuminating opinion by Chief Justice Parker, the principle was established: "That

"The written instructions referred to in the motion for a new trial consisted of a written answer to a written question sent to the judge by the foreman of the jury under the following circumstances:

"The judge had retired to the superior court lobby to await the verdict on the last case of the session, court not having been adjourned. The communication referred to was brought to the lobby between 1 and 2

P. M.

"The judge, believing that counsel had gone to their offices, and that an answer to

This case has been recognized generally as a leading case, and has been widely cited and approved. See notes in 17 L.R.A. (N.S.) 609; 16 Ann. Cas. 1133, 1141; 14 Ann. Cas. 511, 514, where a large number of authorities are collected. It has been followed always in our own decisions. Read v. Cambridge, 124 Mass. 567, 26 Am. Rep. 690. In Merrill v. Nary, 10 Allen, 416, it was held that for the judge to permit the jury to take a copy of the statutes to their room without the knowledge of the parties was such an irregularity as to require the setting aside of the verdict. It was said by Chief Justice Bigelow that "the only regular and safe mode of conducting trials is for the court to instruct the jury on all material points before they retire to deliberate upon their verdict, and, if they have occasion for further information, they should return into court and state the questions on which they wish for further advice, and receive in open court such directions as may seem to the judge material and necessary."

But, as was said by Chief Justice Shaw in Com. v. Roby, 12 Pick. 496, at page 516: "It is not every irregularity which will render the verdict void and warrant setting it aside. This depends upon another and additional consideration, namely, whether the irregularity is of such a nature as to affect the impartiality, purity, and regularity of the verdict itself."

In that case it was held, after a full review of authorities, that the irregularity of furnishing refreshment to the jury after they had agreed upon their verdict, but bethe question, which in his opinion was immaterial to any issue submitted to the jury, did not require counsel to be put to the inconvenience of returning to the court room, sent a written answer, accompanied by the statement that the question and answer were immaterial.

"The action of the judge, although it may be deemed irregular, did not, in my opinion, injuriously affect the substantial rights of the parties, and therefore, in accordance with the provisions of the Stat. of 1913, chap. 716, the motion is denied."

fore it was returned into court, at their own expense, through the agency of the officer in charge, without direction of the court, although reprehensible, did not require a new trial. In Kullberg v. O'Donnell, 158 Mass. 405, 35 Am. St. Rep. 507, 33 N. E. 528, it was held that it was not reversible error for the judge, after the jury had been deliberatng for a considerable time and had failed to agree, to call them into the court room and there openly give additional instructions in the absence of counsel, it being the duty of counsel or the parties to remain in court after the trial of an action was begun until it was finished, if they desired to be present at all proceedings in the cause. But it there was said by Chief Justice Field: "It is plain that all instructions to the jury must be in open court."

there is or should be an absolute rule of law in such a case."

In Whitney v. Com. 190 Mass. 531, 77 N. E. 516, these facts appeared: Late in the evening, after the judge had gone home, a distance of several miles, the jury, having agreed upon their verdict, were in doubt which of several forms handed them to use in expressing their decision, which doubt was communicated to the judge by the officer in charge of the jury. Thereupon the foreman, in the presence of all the jury and the officer, and with no other person present, telephoned the difficulty to the judge, who over the telephone repeated to the foreman in substance what had been said in the charge as to which forms were intended to express the different conclusions reached. The foreman then repeated this statement to the jury in the telephonic In Com. v. Heden, 162 Mass. 521, 39 N. hearing of the judge. The jury were withE. 181, it was held that it was not error in the hearing of everything said by the for the judge to communicate to the jury foreman, and the foreman repeated to the through the officer in charge of them, that jury everything said by the judge. It was upon agreeing on a verdict it might be put said by Chief Justice Knowlton in delivin writing and they might separate. In ering the opinion of the court, in effect, Moseley v. Washburn, 165 Mass. 417, 43 that this was a direction to the whole jury N. E. 182, the amount of the verdict de- "merely as to the proper way to exhibit pended upon two executions. Full instruc- and preserve their verdict on paper, after tions were given as to the computation of they had decided upon it, so that there interest upon these sums, to which no ex- might be no mistake in presenting it to ception was taken. Later, the jury sent a the court. The communication was in note to the judge by the officer, inquiring principle not very different from the comthe date from which interest should be com- mon direction given through the officer to puted. Thereupon, by direction of the a jury who agree in the nighttime, to seal judge, the officer procured from the jury up their verdict and bring it into court room the executions, and the judge showed the next day. It went a little to him the date on each execution which further in telling them how to use the had been pointed out to the jury in the machinery that had been provided for that charge as the date from which interest purpose, but the information was limited should be computed, and directed him to re- to assistance in the use of this machinery, turn the executions to the foreman and to and did not touch any matter that could point out to him the dates which thus had affect the substance of the verdict itself been indicated. The officer followed these before it was agreed upon. There are grave instructions and a verdict was returned for objections to any communication with a the plaintiff with interest computed ac- jury made as this was. The possibility of cordingly. It there was said that, al- misunderstanding or mistake involved in it though the practice was not to be com- is such as should preclude the adoption of mended, it was not necessary to set aside it unless in cases of great emergency; but the verdicts, on the ground that the dates the facts stated in this case make it cer from which interest was to be reckoned had tain that no miscarriage of justice has rebeen pointed out correctly in the charge insulted. Limited as this communication was open court, and the interest became, there- to a collateral direction as to the manner fore, a mere matter of method of computa- of using the papers supplied for the recep tion, which the record showed had been cast tion of the verdict, it does not require us correctly. The opinion of the court, by to set the verdict aside." Chief Justice Field, concluded as follows: "Under these circumstances it is certain that the instructions sent to the jury by the officer had no tendency to influence the decision of the jury upon the merits of the causes, and the irregularity does not seem to us of sufficient importance to require the verdicts to be set aside on the ground that

In all these cases where it has been held that the irregularity was not fatal, the facts were disclosed fully and all that was communicated by the judge to the jury was plainly set forth on the record. In the case at bar, the excepting party did not know at the time, and does not know now, the substance or nature of the communication

from the jury to the judge, nor of his reply. | ciples and high ideals in the administration The statement filed by the judge throws no light upon the subject, and we are as ignorant as the excepting party. The question is whether under these circumstances a new trial is required, in view of Stat. 1913, chap. 716, § 1, whereby it is provided that "no new trial shall be granted in any civil action or proceeding on the ground of improper admission or rejection of evidence, or for any error as to any matter of pleading or procedure, if, in the opinion of the judge who presided at the trial when application is made by motion for a new trial, or in the opinion of the supreme judicial court when application is made by exceptions or otherwise, the error complained of has not injuriously affected the substantial rights of the parties."

The judge who presided at the trial has expressed his opinion of harmlessness as to the matter under review in the phrase of the statute.

The statute does not reach to such a situation as that here presented. It is not plainly stated that the question of the jury and the answer of the judge related to a matter of law. But it is almost inconceivable that a jury should propound any question to a judge whose purpose was not to gain some information about the law. The statement of the judge seems to indicate that it related to law. The inference from all the circumstances is almost irresistible tnat it concerned some matter of law, and hence must be treated on that footing. The giving of secret instructions as to the law is not comprehended within the words "pleading or procedure." It is to be noted that our statute relates only to pleading and procedure, and does not extend to "misdirection," as does order XXXIX. r. 6 of the English Rules of the Supreme Court. Bray v. Ford [1896] A. C. 44, 65 L. J. Q. B. N. S. 213, 73 L. T. N. S. 609. Correct instructions upon matters of law are of the very substance of jury trial at common law. Bothwell v. Boston Elev. R. Co. 215 Mass. 467, 476, L.R.A. 102 N. E. 665, Ann. Cas. 1914D, 275. This is different in kind from mere procedure. It is of last importance that parties and their counsel duly vigilant in the performance of their duty touching an action on trial have the opportunity to know the principles of law which are laid down for the guidance of the jury. Secret instructions or clandestine communications, no matter if given with the best of intentions, contravene this fundamental and essential conception of common-law trial by jury. One of the distinguishing characteristics of the common law is that its trials are public. The incentives to the maintenance of correct prin

of justice, which arise from the consciousness on the part of those who participate in trials that they are open to the public, are important safeguards for the purity, impartiality, and learning of courts, and for the uprightness, sound sense, and integrity of juries. Hearings in camera in commonlaw courts are so contrary to the spirit of that law as to be regarded as almost, if not quite, impossible. See Scott v. Scott [1913] A. C. 417, Ann. Cas. 1913E, 614. That is the general rule. It has its roots far back in the history of the common law and of free institutions. It appears to be one of its most signal advantages. This feature is a priceless inheritance and one to a high degree calculated to preserve to the future the precious privilege of equality before the law. It is not necessary to discuss any apparent or real exception to this general rule, for certainly the present case cannot in any view fall outside that rule.

The communication in the case at bar must be treated as having been an instruction as to law. It was given in secret, and not disclosed to counsel nor spread upon the record. All that is known respecting it is that the judge who gave it regarded it as immaterial. If it was immaterial, it ought not to have been given, though the giving of it publicly might not have been reversible error. But the fatal objection is that nobody else can tell whether it was immaterial or not. It was the right of the parties to know what it was, in order that they might determine that question for themselves and assent to it expressly or by silence, or to ask to have it reviewed on exceptions. That right was one of substance, and not of form. It was denied. The failure to recognize it was not a mere error as to pleading or procedure, but as to an essential feature of trial by jury. Exceptions sustained.

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an auditor's finding, unless it is not support- | a warehouse was the highest for a period of ed by the facts found, or they are so incon- nearly sixty years does not alone relieve the sistent as to neutralize each other, or are warehouseman from liability for the injury, overcome by other evidence. if the floor of the warehouse was below the height reached by the tides several times during that period, and lower than was regarded as safe by experts in the locality. Same assumption of risk.

Evidence others.

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negligence conduct of

2. The practice of others engaged in the same business is evidence upon the question of negligence in not maintaining an elevation of a warehouse above the possible reach of tides, so as to render the owner liable for injury by tides to property stored

therein.

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In order to relieve a warehouseman from liability for injury to goods by an unusual flood which may be deemed an act of God, he must not be in any way guilty of negligence which contributed as the proximate cause to the damage. Carolina Rice Co. v. West Point Mill Co. 98 S. C. 476, 82 S. E. 679.

So, where crystalized eggs were rendered unfit for use by backwater which came into the basement of defendant's warehouse by means of the sewer during unusually high water, there being no device to prevent the backwater from coming up the sewer, and, although defendant knew that the water was rising, it did not take steps to remove the eggs to a higher level, and did not keep watch of the water during the night to see that it did not reach a dangerous level, a verdict for plaintiff was sustained, the court saying that if, under all the circumstances, such as the prolonged rain, the downspouts connecting themselves with the drain, the low sewer grade, the enormous volume of surface water, the high stream, and the absence of all protecting devices against back flow, defendant had notice of a situation which would put a reasonably prudent person on guard to discover the entrance of water in any way, and would require him to take steps to remove the goods, then it ought to be held liable. It was also held that plaintiff was not obliged to take care of the goods, to watch the effects of the storm on the basement, and to remove the goods therefrom on need of it. Nor was plaintiff guilty of contributory negligence in using the eggs for animal food after they had been contaminated by the surface water, instead of trying to cure them for human food. Springfield Crystallized Egg Co. v. Springfield Ice & Refrigerating Co. 259 Mo. 664, 168 S. W. 772.

See also H. A. Johnson & Co. v. Springfield Ice & Refrigerating Co. 143 Mo. App. 441, 127 S. W. 692, involving a similar state of facts and reaching the same conclusion.

In Baltimore Refrigerating & Heating Co. v. Kreiner, 109 Md. 361, 71 Atl. 1066, which was an action for damage to poultry stored in the basement of defendant's warehouse,

4. Mere knowledge of one depositing goods for storage in a warehouse of the location and condition of the place where the goods are kept does not place upon him an assumption of risk of injury from a high tide, or relieve the warehouseman of liability for negligence in leaving the property in danger thereof.

due to the flooding of the basement by the breaking of a city water main, it was held that the question of defendant's negligence should have been submitted to the jury, where plaintiff's evidence showed that defendant's cellar was not properly constructed, that there was no drain to carry off surplus water, and that the freezer in which the poultry was stored was not air-tight or water-tight.

In Prince v. St. Louis Cotton Compress Co. 112 Mo. App. 49, 86 S. W. 873, an action for damage to cotton stored in defendant's warehouse, by water due to an unprecedented rise in the Mississippi river, the_court said that, while defendant was powerless to stop the rise in the river, and was under no legal duty to improve the dike to prevent its breach or overflow by the waters of river, it did owe the duty to its customer to exercise ordinary care and diligence to remove the cotton to a place of safety after it saw that the same was likely to be submerged, and a verdict for plaintiff was sustained where defendant's officers knew that the danger of its warehouse being flooded from the waters of the river was hourly increasing, and that the bank was liable to break or be overflowed at any time, but failed to make every reasonable effort in its power to remove the cotton to a place of safety.

And where a shipment of books was stored on a wharf which was well covered, and was in other respects, save its proximity to the water, a safe and secure place for the storage of such goods, and it was there damaged by water during a storm of rain and wind of unusual violence, which caused the tide to rise to an unusual height and submerge the dock, a part of which had not been submerged more than once during a period of twenty years, the part on which the books were placed never having been submerged before, defendant was held liable for the injury to the goods, it appearing that at other times the water had risen to within a few fect of the floor of the wharf, and at the prior time when the other part of the wharf was submerged, the water rose to within a few inches of the wharf where the books were stored, and that the tide had been rising steadily all day, so that defendant had sufficient notice to have enabled it to remove the goods to a safe place had it exercised proper care. Merchants' & M.

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