Bush v. Stanton
| Decision Date | 26 July 1962 |
| Docket Number | 6 Div. 434 |
| Court | Alabama Supreme Court |
| Parties | Fred N. BUSH, Jr. v. Roy F. STANTON, Jr. |
G. W. Nicholson, Birmingham, for appellant.
Mead & Norman and Marshall H. Fitzpatrick, Birmingham, for appellee.
This is an appeal by plaintiff from a judgment for defendant rendered on the verdict of a jury in an action for assault and battery. Plaintiff's motion for new trial was overruled and plaintiff severally assigns as errors the overruling of three grounds of the motion.
The defendant is a surgeon. He performed a hernia operation on plaintiff's right side. Plaintiff contends that the parties agreed that defendant should operate on the hernia on plaintiff's left side, but that defendant operated on plaintiff's right side instead, contrary to the agreement and without plaintiff's consent, and that when defendant thus operated on plaintiff's right side, defendant committed an assault and battery on plaintiff for which he is entitled to recover.
Defendant contends that prior to the operation, he advised plaintiff that plaintiff's hernia on the right side should be operated on first, and that plaintiff then agreed that defendant should operate on plaintiff's right side. Thus, contends defendant, he operated with plaintiff's consent and there was no assault or battery committed by defendant.
Assignment of Error 1 is that the court erred in overruling Ground 12 of the motion which recites as follows:
The only matter in the transcript to support Ground 12 is found in two affidavits which were submitted in support of the motion for new trial. The affidavits are made by two attorneys for plaintiff, each attorney making only one affidavit.
The first affiant deposes to the following effect: that on completion of the trial, the jury retired to the jury room; that two or three hours later one of the jurors rapped on the door; that a court official opened the door and went into the jury room, came out 'a minute or so later', and went into the chambers of the trial judge; that a few minutes later the official returned from the judge's chambers, went directly back to the jury room, and after a few minutes came out of the jury room when he was stopped by affiant and his associate; that affiant's associate asked the official what had transpired but the official would not tell them; that affiant dismissed the matter from his mind for the time being; that 'about an hour or so later', the attorneys for defendant came into the courtroom and were told by affiant what had happened an hour or so earlier; that affiant and one of defendant's attorneys 'confronted' the court official and sought to learn from him what had occurred; that after some conversation, the official told affiant and defendant's attorney that 'the jurors wanted to have the Judge instruct them as to the legal significance of a release in the hospital record which the plaintiff had signed'; that the official stated that he went to the judge with the jurors' request, and, after informing the judge that the attorneys for defendant were not in the courtroom, the official was told by the judge to tell the jurors that they would have to deliberate without further instructions; that after the jury returned the verdict for defendant affiant and his associate talked with some of the jurors and were told substantially the same things that were told by the court official. The second affidavit is to like effect, with the added statement that affiant subpoenaed all the jurors and, on the day set for hearing the motion for new trial, the court refused to permit the jurors to testify.
We are of opinion that the court cannot be put in error on this showing for overruling Ground 12.
The only matter in the affidavit tending to prove that the jury requested further instructions is hearsay. Without deciding that the jurors could or could not testify as to any message they sent to the court, we see no reason why the official who took the message could not have been called to testify. At the outset, we are faced with a total lack of competent evidence to prove that the jury requested any additional instructions.
If the affidavits should be regarded as competent, they show that, at the time the jury made their request, counsel for defendant were not in the courtroom and did not return there for an hour after the request was made. The court would have erred in giving additional instructions in the absence of counsel. Kuhl v. Long, 102 Ala. 563, 15 So. 267; Feibelman v. Manchester Fire Assurance Co., 108 Ala. 180, 19 So. 540.
The affidavit states that the jurors '* * * wanted to have the Judge instruct them as to the legal significance of a release in the hospital record which the plaintiff had signed'. In plaintiff's Exhibit 1, there does appear a form of release purporting to have been signed by plaintiff. In the absence of a request from one of the parties, it may be doubted that the court could have, without error, instructed the jury 'as to the legal significance' of the release. § 270, Title 7, Code 1940.
Appellant cites Ulrich v. Schwarz, 199 Wis. 24, 225 N. W. 195, 63 A.L.R. 886, where it was held to be error for the trial court to refuse to instruct the jury as to what constitutes a nominal amount, when the jury, after retiring to the jury room, made inquiry seeking that advice. Without committing ourselves to that holding, we are of opinion that the inquiry there may be distinguished from the inquiry here. In Ulrich, the request was for definition of an expression the court had used in the charge. In the case at bar, the request was for instruction as to 'the legal significance of' part of the evidence.
In any event, the affidavits in the instant case disclose that plaintiff's counsel had knowledge of the jury's request after it had been refused by the court and after defendant's counsel had returned to the courtroom. Plaintiff states in brief:
The affidavit does not show, however, that plaintiff's counsel made any request to the court to instruct the jury, or informed the court that defendant's counsel were present, although plaintiff's counsel had knowledge of the jury's request. It has been held by this court that it will not reverse a judgment of the circuit court for its refusal to give a charge asked, unless it appear that such charge was put in writing as the statute provides. Jacobson v. State, 55 Ala. 151; Green v. State, 66 Ala. 40. See also: Mullins v. Lemley, 205 Ala. 593, 88 So. 831; Krasner v. Gurley, 248 Ala. 686, 29 So.2d 224; Keel v. Weinman, 266 Ala. 684, 98 So.2d 611; § 273, Title 7, Code 1940. If there can be no reversal for failure to give a charge where the request is made orally, then it does not appear that a reversal should be allowed where the party complaining has made no...
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