Capitol Builders, Inc. v. Shipley

• Decision Date: 23 November 1983
• Docket Number: 1183S416,Nos. 2-281A65,s. 2-281A65
• Citation: 455 N.E.2d 1135
• Parties: CAPITOL BUILDERS, INC., Appellant, v. David L. SHIPLEY and Elaina J. Shipley, Appellee.
• Court: Indiana Supreme Court

Page 1135

455 N.E.2d 1135

CAPITOL BUILDERS, INC., Appellant, v. David L. SHIPLEY and Elaina J. Shipley, Appellee.

Nos. 2-281A65, 1183S416.

Supreme Court of Indiana.

Nov. 23, 1983.

John G. Forbes, Forbes, Kias & Pennamped, P.C., Indianapolis, for appellant.

David A. Clase, Harper & Clase, Indianapolis, for appellee.

PIVARNIK, Justice.

This action was brought by Plaintiffs-Appellees David and Elaina Shipley for negligence and breach of warranty in the construction of their home. Following a jury trial, the trial judge entered judgment in their favor. Defendant-Appellant Capitol Builders, Inc., appealed to the Second District Court of Appeals who affirmed the trial court. The only issue presented in this Petition to Transfer is Appellant's contention that the trial court erred by reading to the jury, over Appellant's objection, a supplemental final instruction generally referred to as an "Allen charge." This Court and the Court of Appeals previously have held that the giving of an "Allen charge" supplemental instruction in either a criminal or a civil case is reversible error. The Court of Appeals opinion and opinion on rehearing are accordingly vacated and the trial court is reversed with instructions to grant a new trial.

The Court of Appeals conceded that the giving of a supplemental instruction in the nature of an "Allen charge" is reversible error pursuant to the decisions of this Court and of the Court of Appeals. Crowdus v. State, (1982) Ind., 431 N.E.2d 796; Burnett v. State, (1981) Ind., 426 N.E.2d 1314; Lewis v. State, (1981) Ind., 424 N.E.2d 107, reh. denied; Indiana State Highway Comm. v. Vanderbur, (1982) Ind.App., 432 N.E.2d 418, on reh. Ind.App., 434 N.E.2d 575, trans. denied. The instruction given here was similar to the instructions given in the above cited cases. The instant instruction specifically read as follows:

"SUPPLEMENTAL FINAL INSTRUCTION

This is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases it must be disposed of at some time. Another trial would be a heavy burden on both sides.

There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.

Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.

These matters are mentioned now because some of them may not have been in your thoughts.

This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.

This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed.

You may be leisurely in your deliberations as the occasion may require and take all the time you feel necessary.

The giving of this instruction at this time in no way means it is more important than any other instruction. On the contrary, you should consider this instruction together with and as a part of the instructions which I previously gave you.

You may retire and continue your deliberations in such manner as may be determined by your good judgment as reasonable people."

Appellant raised the instant issue before the Court of Appeals indicating that the supplemental instruction was given after the jury had retired and deliberated for some time. Appellant objected to the instruction but the trial court gave it notwithstanding. Appellees' response to the giving of this instruction and argument in its brief was that it was harmless error since the evidence was so strong in Appellees' favor that the jury would likely have reached the same verdict with or without the supplemental instruction. Appellant's claim was that the supplemental instruction was delivered after the jury had commenced deliberations. This fact was not questioned by the Appellees. The Court of Appeals found, however, that in examining the trial court's order book, there was no entry showing that the jury had been called back into court after retiring to deliberate upon a verdict. The Court of Appeals therefore assumed that the "Allen charge" instruction had been given with the rest of the instructions before the jury retired. The Court of Appeals also found that the record showed that Appellant's objections to the proposed final instructions appeared in the same place as Appellant's objections to the supplemental instruction. The Court of Appeals concluded that since the supplemental instruction apparently was given at the same time as the other instructions and as part of the trial court's original charge, that the possibility of undue emphasis was eliminated and the harm caused by the supplemental instruction was removed to the extent that its tender was harmless.

Appellant subsequently petitioned the Court of Appeals for rehearing claiming that the "Allen charge" instruction was not included among the original instructions and was not given as part of the trial court's original charge. Apparently,...