Burton v. Neill

Decision Date17 November 1908
Citation118 N.W. 302,140 Iowa 141
PartiesBURTON v. NEILL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Osceola County; John F. Oliver, Judge.

Action to recover damages for malpractice of the defendant, a physician, in failing to properly reduce a dislocation of plaintiff's shoulder. There was a verdict for the plaintiff for damages in the sum of $245, and from a judgment on this verdict the defendant appeals. Affirmed.C. M. Brooks, for appellant.

O. J. Clark, for appellee.

McCLAIN, J.

1. This case was submitted to a jury about 9 o'clock on the morning of January 18, 1906, and the jury then retired for deliberation. At 2 o'clock in the afternoon of the same day the jury returned into court, with the report that they were unable to agree upon a verdict, and had agreed to disagree, and thereupon, at the direction of the court, they were reconducted to their room, with instructions to proceed with their deliberations. Fifteen minutes afterward, however, the jurors were called into court, and, replying, in response to a question of the court, that there seemed to be no prospect of their agreeing upon a verdict, the court gave the jury an additional instruction, to the effect that it was the duty of each to lay aside all pride of judgment, and carefully review the ground of his opinion, and endeavor to reach an agreement, and, further, that the case had been exhaustively tried, and a disagreement would necessitate a new trial, entailing a large expense upon the parties; and the jurors were directed to return to their room and examine their differences in a spirit of fairness and candor, and endeavor, if possible, to agree upon a verdict. Thereupon the jurors again retired, and at 9 o'clock in the evening of that day brought in a verdict for the plaintiff. From affidavits of jurors, introduced in support of defendant's motion for a new trial, it appears that, when they reported a disagreement, three of them had stood unswervingly against a finding for the plaintiff in any sum whatever, and were in favor of a verdict for defendant, and that after the giving of the additional instruction, and as a consequence thereof, these three jurors agreed to a verdict in plaintiff's favor. So far as this showing made by affidavits of jurors is concerned, we think it wholly immaterial. The fact that the jurors had not been able to agree was made known to the court in the regular manner, and a subsequent agreement, on a verdict reached nearly 7 hours after the additional instruction was given, does not indicate that any other result than that of a further deliberation by the jurors was produced by the giving of the instruction. The court was justified in insisting that the jurors should give further deliberation to the case for the purpose of reaching an agreement, if possible, and the instruction was in accordance with the proper practice in such cases, and not erroneous in the language used. State v. Richardson, 115 N. W. 220;Delmonica Hotel Co. v. Smith, 112 Iowa, 659, 84 N. W. 906;Frandsen v. Chicago, R. I. & P. R. Co., 36 Iowa, 372.

It appears that the additional instruction was given in the absence of defendant and his counsel, and without any effort, on the part of the court, to advise them that the jurors were to be further instructed, and it is contended that in this respect the court erred. In support of this contention the cases of Davis v. Fish, 1 G. Greene, 406, 48 Am. Dec. 387, and O'Connor v. Guthrie, 11 Iowa, 80, are relied upon. These cases are by no means conclusive. The thought seems to be that such instructions should be given only in open court; that is, not in the jury room, nor at a time when the court cannot properly transact judicial business. In other states there has been some conflict in the decisions on the question, but the great weight of authority is to the effect that while the jury is deliberating the court is in session so far as the case is concerned, and it is the duty of counsel to be present, in order to take notice of whatever is done in the case; and that, while as a matter of courtesy, a judge may, if he sees fit, have counsel called if not present, he is under no legal obligation to do so, when he has occasion to give further instructions to the jurors. Chapman v. Chicago & N. W. R. Co., 26 Wis. 295, 305, 7 Am. Rep. 81;Cooper v. Morris, 48 N. J. Law, 607, 7 Atl. 427;Hudson v. Minneapolis, L. & M. R. Co., 44 Minn. 52, 46 N. W. 314;Reilly v. Bader, 46 Minn. 212, 48 N. W. 909;State v. Pike, 65 Me. 111;Nat. Life & Trust Co. v. Omans, 137 Mich. 365, 100 N. W. 595;Fournier v. Pike (C. C.) 128 Fed. 991.

The case of Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am. Dec. 185, relied on in our early cases on the subject, has been practically overruled in Kullberg v. O'Donnell, 158 Mass. 405, 33 N. E. 528, 35 Am. St. Rep. 507. Many authorities on the subject are collected in 1 Blashfield on Instructions, §§ 182, 183. But for this state the subject is now regulated by a provision of the Code, as follows: Sec. 3720. Additional Instructions. After the jury has retired for deliberation, if they desire to be instructed as to any point of law arising in the case, they may request the officer to conduct them into court, which he shall do, when the court may further instruct, which instruction shall be given in the presence of or after notice to the parties or their counsel. Such instruction shall be in writing, be filed as other instructions in the case, and be a part of the record, and may be excepted to in the same manner and time as the instructions given before the jury retires.” While this section specifically refers only to cases where the jury has requested additional instructions, it should no doubt be applied also to cases where the court calls in the jury, on his own motion, to give them further instructions, for such an occasion is clearly within the spirit and purpose of the statutory rule. It is to be noticed, however, that the section has relation only to instructions “as to any point of law arising in the case,” and it is necessary to consider whether the direction given by the judge in this instance to the jury was such an instruction as is contemplated. The requirement that counsel be advised is no more obligatory than that the instruction be in writing, and it is quite uniformly held that the instructions which must be in writing under statutory requirements are only expressions of the principles of the law applicable to the case, or some branch or phase of the case, which the jury are bound to apply in order to render a verdict establishing the rights of the parties in accordance with the facts proven. Lehman v. Hawks, 121 Ind. 541, 23 N. E. 670;Moore v. City of Platteville, 78 Wis. 650, 47 N. W. 1055;State v. Jones, 7 Nev. 408;Boggs v. United States, 10 Okl. 424, 63 Pac. 969, 65 Pac. 927. These cases are selected from many which bear on the subject, because they involve just such an instruction to the jurors, with reference to their duty, as was given in this case. That general directions to the jurors as to their duty, not having any bearing upon the evidence which they are to consider and the law applicable thereto, are not instructions such as are required to be in writing under statutory provisions is illustrated by many cases. See Johnson v. Rider, 84 Iowa, 50, 50 N. W. 36;Judge v. Jordan, 81 Iowa, 519, 46 N. W. 1077;State v. McLafferty, 47 Kan. 140, 27 Pac. 843;State v. Potter, 15 Kan. 302;McCallister v. Mount, 73 Ind. 559;Stanley v. Sutherland, 54 Ind. 339, 354. Many other cases are cited in 1 Blashfield on Instructions, §§ 119-122. The court committed no error, therefore, in giving the direction to the jury without notice to counsel which would enable them to be present.

2. In the cross-examination of a witness, who testified as a physician with reference to the reduction by him of the dislocation of plaintiff's shoulder, 10 weeks after the happeningof the accident, there was some question as to the resisting force which he had to overcome in putting back the bone into its socket, and he was asked what muscles were there, and how many, and to describe them. The court refused to allow the witness to be called upon to state the technical names of the muscles, nerves, tendons, and tissues of the shoulder. At the conclusion of a colloquy between the court and the cross-examining counsel it was stated by counsel that he was not asking for technical names, but for a description of the resisting power of the various muscles, and the court ruled that the witness might describe the muscles, but need not give the technical names of them. Counsel excepted to this ruling, and now assign it as error, but we think without any substantial ground; for counsel immediately afterward asked the witness to describe the muscles that in his opinion acted as a resisting power to his performing the operation described, and the witness proceeded to do so without objection. The only portion of the court's ruling that restricted counsel in his cross-examination was the statement that the witness need not give the technical names of the muscles, and counsel was protesting throughout that he did not desire the technical names, but only a general description.

3. The chief contention for the appellant is, however, that the verdict of the jury was contrary to law and the instructions of the court, and was not sustained by sufficient evidence, and that it was the result of passion and prejudice. The testimony of plaintiff and witnesses who saw him at the time of or soon after the accident could leave no doubt in the minds of the jury that plaintiff was suffering from a severe injury of some kind to his shoulder. His own account of the happening of the accident was that a halter strap, with which he was holding a cow in his stable, became so wrapped about his hand or wrist that he could not release his hold upon her, and that, being frightened, she jerked him through the door of the...

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4 cases
  • Addy v. Stewart
    • United States
    • Idaho Supreme Court
    • June 20, 1949
    ... ... Peterson v. Rawalt et al., 95 Colo. 368, 36 P.2d ... 465; Sibley v. Kansas City Cotton Mills Co., 85 Kan ... 256, 116 P. 889; Burton v. Neill, 140 Iowa 141, 118 ... N.W. 302, 17 Ann.Cas. 532. The admonition given in this case, ... in itself, seems to be entirely harmless, and in ... ...
  • Dorcas v. Aikman
    • United States
    • Iowa Supreme Court
    • June 14, 1966
    ...enters a field belonging to the jury alone. We do not agree. An instruction relative to duties of jurors is proper. Burton v. Neill, 140 Iowa 141, 143, 118 N.W. 302, 303; Armstrong v. James & Co., 155 Iowa 562, 568, 136 N.W. 686, 688. See also Anno. 19 A.L.R.2d Instruction 17 contains some ......
  • State v. Dreessen, 64800
    • United States
    • Iowa Supreme Court
    • May 13, 1981
    ...find merit in the contention that the court instructed the jury under rule 18(7)(g ). This court stated in Burton v. Neill, 140 Iowa 141, 145, 118 N.W. 302, 303 (1908): That general directions to the jurors as to their duty, not having any bearing upon the evidence which they are to conside......
  • Burton v. Neill
    • United States
    • Iowa Supreme Court
    • November 17, 1908

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