Acree v. Minolta Corp.

• Decision Date: 15 November 1984
• Docket Number: No. 82-1173,82-1173
• Citation: 748 F.2d 1382
• Parties: 17 Fed. R. Evid. Serv. 1174 James ACREE, Plaintiff-Appellee, v. The MINOLTA CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1382

748 F.2d 1382

17 Fed. R. Evid. Serv. 1174

James ACREE, Plaintiff-Appellee, v. The MINOLTA CORPORATION, Defendant-Appellant.

No. 82-1173.

United States Court of Appeals, Tenth Circuit.

Nov. 15, 1984.

Peter J. Ruddick, Olathe, Kan. (Gary L. Lane, Olathe, Kan., on brief) of Speer, Austin, Holliday, Lane & Ruddick, Chartered, Olathe, Kan., for plaintiff-appellee.

Mark A. Corder of Hackler, Londerholm, Corder, Martin & Hackler, Olathe, Kan., for defendant-appellant.

Before BARRETT and LOGAN, Circuit Judges, and JENKINS, District Judge. ^*

JENKINS, District Judge.

The Minolta Corporation, the defendant in a diversity case for breach of contract, appeals a judgment entered against it pursuant to a jury verdict. We affirm.

James Acree, a sales representative of Minolta from July 1978 to May 1980, brought this action in Kansas State Court to recover the value of certain trips he claimed to have won while he was a Minolta employee. After Minolta counterclaimed for Acree's failure to return various copying equipment used for demonstrations, Acree amended his complaint to allege a breach of an employment contract. Minolta then removed the action to federal court. After a five day trial, the jury returned a verdict in favor of Acree for $41,765, and in favor of Minolta on its counterclaim for $2,357.

I.

Minolta's primary claim on appeal is that the trial court erred in responding to two notes from the jury without first consulting with counsel. During its deliberation, the jury sent two notes to the court; and the judge, without notifying either counsel that the jury had submitted questions, responded as follows:

Question: "Should Judge O'Connor have included consideration of loss of car for 9 months in instruction # 15?"

Response: "Loss of car was not included because the court ruled that he was not entitled to damage for this item."

Question: "We seem to be missing the police report re: machines. Is that point relevant to our deliberations?"

Response: "A police report was referred to, but was not offered or admitted into evidence."

The first question from the jury concerned damages. Acree claimed that he was entitled to $5,000 in damages for the loss of use of a company car. On a motion for a directed verdict at the close of all the evidence, the court denied this claim entirely. Accordingly, instruction # 15, which instructed the jury on damages, did not include the loss of use of the car as an element of damages.

The jury's second question was related to Minolta's counterclaim for Acree's failure to return demonstrator equipment. Acree claimed that he failed to return a copier because it had been stolen. To prove that it had been stolen, Acree offered a police report that referred to the theft. After Minolta objected to the report as hearsay, the parties stipulated in the presence of the jury that the copier had been stolen, and Acree withdrew the exhibit.

The United States Supreme Court, held in Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919), that giving supplemental instructions to the jury in the absence of the parties is reversible error. In Fillippon, the plaintiff sought damages for his employer's negligence. The plaintiff's duty was to push a wooden wedge beneath a large block of slate held up by crowbars so that chains could be placed around the block. Although the usual practice was to insert the wedge by hand only as far as possible without putting his hand under the block, and then push the wedge in further with a stick, the plaintiff, responding to his foreman's order to do so, pushed the block all the way in with his hand. The block slipped suddenly and crushed his hand.

The plaintiff's claim for negligence was tried to a jury. During its deliberation, the jury sent a note to the judge inquiring "Whether the plaintiff in pushing the wedge beneath the block of slate with his hand, having full knowledge of the risk involved, thereby became guilty of contributory negligence, even though told by Foreman Davis to 'push it under.' " Id. at 80, 39 S.Ct. at 436. Without notifying counsel for either party, the trial judge sent back its written reply: "If he did so, fully appreciating at the time the danger attending and having sufficient time to consider, when he was face to face with a situation that would have made a reasonably prudent man to disobey the orders of the foreman, notwithstanding, and he went ahead in spite of the dangers known to him and apparent, he is guilty of contributory negligence." Id. The Supreme Court ruled that to give this supplementary instruction to the jury in the absence of the parties was error:

We entertain no doubt that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict. Where the jury has retired to consider of its verdict, and supplementary instructions are required, either because asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be present; and written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object.

Id. at 81, 39 S.Ct. at 436. See also United States v. Walker, 557 F.2d 741 (10th Cir.1977); Parfet v. Kansas City Life Insurance Co., 128 F.2d 361 (10th Cir.), cert. denied, 317 U.S. 654, 63 S.Ct. 50, 87 L.Ed. 526 (1942); See generally, Annot., 32 A.L.R.Fed. 392 (1977).

Notwithstanding this general rule, it is not error if the instructions given to the jury are merely administrative directions rather than supplementary instructions. Sanders v. Buchanan, 407 F.2d 161 (10th Cir.1969); General Motors Corp. v. Walden, 406 F.2d 606 (10th Cir.1969); see also Throckmorton v. St. Louis-San Francisco Ry. Co., 179 F.2d 165, 170 (8th Cir.), cert. denied, 339 U.S. 944, 70 S.Ct. 797, 94 L.Ed. 1359 (1950). The difficulty in the present case is in determining whether the notes the trial judge gave to the jury were supplemental instructions like the ones given in Fillippon, Walker, and Parfet, or administrative directions like the ones given in Sanders and Walden.

In Sanders, a civil rights action brought under 42 U.S.C. Sec. 1983, the plaintiff brought an action against a police officer for shooting the plaintiff. During its deliberation, the jury sent a note to the court. The judge replied in writing: "The court has received your request which reads as follows: 'Can we have the police manual with clauses underlined denoting the proper circumstances under which a policeman may shoot? Clauses which were read in court.' The court cannot grant this request." 407 F.2d at 163.

In Walden, after deliberating for some time, the jury sent the following note to the court: "Your Honor, we are sitting five to one, and apparently cannot get any closer. We do not know what to do. Will you please instruct us." 406 F.2d at 609. In the absence of counsel, the court answered: "The Court has received your note and advises you that you are to continue to deliberate." Id.

Both Sanders and Walden involved purely administrative matters. Neither trial court told the jury what the law is or instructed the jury how to apply the law to the evidence. Accordingly, the administrative directions were not error.

In the present case, the court's answer to the jury's second question, regarding the police report, was very similar to the court's response in Sanders. Both courts responded to a request for an exhibit that was not in evidence. The only difference is that the court in Sanders informed the jury that it could not have the exhibit, while the court here explained the reason the jury could not have the exhibit. The trial court's explanation did not instruct the jury on what the law is or on how to apply the law to the evidence. Nor did it instruct the jury on how to conduct itself. It merely gave the jury collateral information that did not affect its deliberation. Accordingly, the answer to the jury's question regarding the police report was an administrative direction. It was not error for the judge to give it.

However, the trial court's response to the jury's first question, whether the plaintiff was entitled to damages for the loss of use of the car, was a supplemental instruction. The jury had previously been instructed on how it should determine damages. The court added to that instruction by telling the jury not to award damages for loss of the use of the car. The note was a direct statement of law concerning the plaintiff's measure of damages. Therefore, the judge erred in giving that supplemental instruction without first consulting with counsel. ¹

This does not end our inquiry, however. A finding of error does not require reversal unless the error affected substantial rights of the parties. 28 U.S.C. Sec. 211 (1982); compare Fed.R.Civ.P. 61. The harmless error rule applies equally to supplementary instructions as it does to any other ruling by the trial court. The Second Circuit, speaking through Judge Learned Hand, concluded:

[L]ike other rules for the conduct of trials it is not an end in itself; and, while lapses should be closely scrutinized, when it appears with certainty that no harm has been done, it would be the merest pedantry to insist upon procedural regularity.

United States v. Compagna, 146 F.2d 524, 528 (2d Cir.1944), cert. denied, 324 U.S. 867, 65 S.Ct. 912, 89 L.Ed. 1422 (1945).

The Supreme Court has indicated that reversal is not necessarily required in criminal cases if a supplementary instruction is harmless error. Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975). A fortiori, reversal is not required in civil cases if a supplementary instruction is harmless error. ² We now join the other circuits that have...