Cleaners & Dyers v. Benner

• Decision Date: 15 April 1931
• Docket Number: 22625
• Citation: 175 N.E. 857,123 Ohio St. 482
• Parties: Krieger's Cleaners & Dyers, Inc., v. Benner.
• Court: Ohio Supreme Court

175 N.E. 857

123 Ohio St. 482

Krieger's Cleaners & Dyers, Inc., v. Benner.

No. 22625

Supreme Court of Ohio

April 15, 1931

New trial - Petition filed after term when verdict returned - Reasonable diligence exercised after irregularity in proceedings discovered - Sections 11576 and 11550, General Code - Jury instructed, after retirement, in absence of parties and counsel - Section 11452, General Code.

1. When a petition for new trial is filed under Sections 11580 and 11576, General Code, setting up irregularity in the proceedings of the court and it appears that with reasonable diligence the grounds for new trial could not be discovered before, but were discovered after the term at which the verdict was rendered, reasonable diligence exists if diligence was exercised after the discovery of the irregularity in the proceedings of the court.

2. Under Section 11452, General Code, it is reversible error for a trial court, in the absence of and without notice to counsel, to give additional instructions upon points of law to the jury after the jury has retired for consultation.

In this case the plaintiff, Ruth M. Benner, brought suit for personal injury in the court of common pleas of Cuyahoga county against Krieger's Cleaners & Dyers, Inc. A verdict was rendered in favor of the defendant. After the overruling of the motion for new trial, the plaintiff perfected error proceedings in the Court of Appeals which affirmed the judgment entered in the court below. Benner v. Krieger's Cleaners & Dyers, Inc., 38 Ohio App. 7, 175 N.E. , 867.

The judgment in favor of the defendant was entered in the court of common pleas on June 20, 1928, and the Court of Appeals rendered its judgment of affirmance on June 24, 1929. Upon December 24, 1928, plaintiff filed a petition against Krieger's Cleaners & Dyers, Inc., in the court of common pleas under Section 11580, General Code claiming that grounds for a new trial had been discovered after the term. The defendant filed a motion to strike this petition from the files on the ground that the plaintiff was already invoking the jurisdiction of the Court of Appeals to review the judgment of the court of common pleas in her initial case. This motion was sustained. Plaintiff prosecuted error to the Court of Appeals, which court reversed the ruling of the trial court in striking the petition from the files. No error was prosecuted to this reversal. Thereupon the court of common pleas considered upon its merits the petition for new trial filed under Section 11580, and the trial court found that, "on the trial of cause No 278,597, Ruth Benner, plaintiff, v. Krieger's Cleaners &amp Dyers, Inc., defendant, that the jury was given additional instructions by the trial court, in the absence of the plaintiff and of counsel for both the plaintiff and the defendant, and finds that the giving of such additional instructions was, under the said circumstances, prejudicial to the rights of the plaintiff. The Court further finds that the grounds for a new trial as set forth in the petition in this cause could not with reasonable diligence have been discovered before but were discovered after the term at which the verdict and judgment were rendered, and that the plaintiff exercised due diligence in making application for a new trial by petition, in compliance with General Code No 11580, not later than the second term after the discovery."

The court thereupon vacated the verdict and judgment theretofore rendered in the cause, and granted a new trial to the plaintiff. Upon error proceedings being perfected to this judgment of the court of common pleas, the judgment was affirmed. Krieger's Cleaners & Dyers, Inc., v. Benner, 38 Ohio App. 18, 175 N.E. , 871.

The case was certified to this court by the Court of Appeals of Cuyahoga county, on the ground of conflict. The Court of Appeals held the decision to be in conflict with a judgment pronounced upon the same question by the Court of Appeals of Knox county in the case of Stoyle v. State, 32 Ohio App. 133, 165 N.E. , 596.

Further facts are stated in the opinion.

Messrs. Baker, Hostetler & Sidlo and Mr. Lockwood Thompson, for plaintiff in error.

Messrs. Newcomb, Newcomb & Nord and Mr. Donald W. Hornbeck, for defendant in error.

ALLEN J.

The petition for new trial alleges the following:

"This plaintiff further says that during the trial of the above lawsuit, after argument, and after the charge of the court the jury then deliberated upon its case. Plaintiff further says that while the jury were deliberating that the jury were undecided as to a point of law involved in the above case. Plaintiff further says that while they were so deliberating and before they had agreed upon a verdict they requested the court bailiff to conduct them to the trial room and before the trial judge for further instructions. Plaintiff further says that this jury was so conducted to the trial judge and further instructions upon a point of law were given by the trial judge in court room 10 of the court of Common Pleas, County of Cuyahoga and State of Ohio.

"The plaintiff further says that when the jury came back for further instructions neither she nor her counsel were notified nor was there an attempt on the part of the court officials to so notify this plaintiff or her counsel; that there is no record of these further instructions being given in the bill of exceptions which was prepared in the above case."

The petition further states:

"Plaintiff further says this fact that the jury did come back for further instructions was not brought to her attention until after the motion for new trial had been denied, and was not discovered by her and could not have been discovered with reasonable diligence during the June term of said court, A.D. 1928, thus the plaintiff was prevented from having a fair trial due to the irregularity of proceedings of the Court as above mentioned."

Testimony was taken in the court of common pleas upon the question as to whether the jury was given additional instructions by the trial court in the absence of counsel. A deputy clerk of the court of common pleas testified that the jury in the case was brought in in the absence of counsel; that one of the jurors asked the judge for further instructions as to "what happens if one party is more negligent than the other?" When questioned whether the trial court said "that maybe might apply in marine law," this witness stated, "Yes; about one being more negligent than the other. I don't just remember exactly what he said, but he spoke to them." The jury shortly thereafter returned a verdict for the defendant. Testimony to the same general effect was given by a juror in the case, who said that the judge repeated the part of the charge relative to contributory negligence. The trial judge had no recollection upon the subject. It was conceded that none of counsel were present, that none of counsel were notified, and that the stenographer was not present when the additional instructions were given. Hence, no record of these oral proceedings was taken.

The plaintiff in error urges (1) that due diligence on the part of plaintiff below in discovering the acts which she claims were prejudicial was not shown, and (2) that, even though the trial court in the original case may have reinstructed the jury in the absence of counsel, this was entirely proper on the part of the trial court.

Section 11580, General Code, reads as follows:

"When, with reasonable diligence, the grounds for a new trial could not be discovered before, but are discovered after the term at which the verdict, report, or decision was rendered or made, the application may be by petition, filed not later than the second term after the discovery, nor more than one year after final judgment was rendered, on which a summons must issue, be returnable and served, or publication made, as in other cases."

The application in this case was fled not later than the second term after the discovery of the irregularity complained of.

Section 11576, General Code, reads:

A former verdict, report, or decision, shall be vacated, and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantial rights:

"1. Irregularity in the proceedings of the court, jury, referee, master, or prevailing party, or any order of the court or referee, or abuse of discretion, he was prevented from having a fair trial;

"2. Misconduct of the jury or prevailing party;

"3. Accident or surprise which ordinary prudence could not have guarded against;

"4. Excessive damages, appearing to have been given under the influence of passion or prejudice;

"5. When the action is upon a contract or for the injury or detention of property, error in the amount of recovery, whether too large or too small;

"6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law;

"7. Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at the trial;

"8. Error of law occurring at the trial and excepted to by the party making the application."

Section 11578, General Code, reads as follows:

"The application for a new trial must be made at the term the verdict, report, or decision is rendered, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence discover and produce at the trial. The application must be made within three days after the verdict or decision is rendered, unless he is unavoidably prevented from filing it within such time."

Plaintiff in error argues that Section 11580 was intended to apply to cases of newly...