In Re: On Suggestion Of Error
| Decision Date | 22 October 1934 |
| Docket Number | 31246 |
| Citation | 157 So. 91,171 Miss. 16 |
| Court | Mississippi Supreme Court |
| Parties | On Suggestion Of Error. |
(Division B.)
Application for correction of court reporter's transcript of trial proceedings should be made before submission of case to Supreme Court, and, where statutory method of correction has not been followed, valid excuse should be offered as predicate for petition to correct record after transcript is filed in Supreme Court (Code 1930, sec. 726).
Application to correct court reporter's transcript of trial proceedings presented in trial court after case had been decided by Supreme Court was filed too late, and proceedings to correct transcript would be disregarded.
Where there has been view or inspection of place or premises by jury, Supreme Court will not reverse on evidence, if there be any substantial testimony, delivered by sworn witnesses in support of verdict (Code 1930, sec. 2066).
Trial court is not required to allow view of premises by jury because both parties request it or consent to it, because refusal of request is in trial court's discretion (Code 1930, section 2066).
Upon request for view of premises by jury, considerations of inconvenience, distance, delay, and expenses are to be determined by court, although such matters may be urged in objection, because refusal or request is in trial court's discretion (Code 1930, sec. 2066).
Request for view should not be granted unless it is reasonably certain that it will be of essential aid to jury in reaching correct verdict, and that it is distinctly impracticable to present material elements to jury by photographs, diagrams, and measurements (Code 1930, sec. 2066).
View of premises by jury should not be allowed when there has been material changes in place or premises (Code 1930, sec. 2066).
Objection to request for view by jury asked for by opposing counsel did not apply to later request for view asked for by jury, so as to preserve later request for review in Supreme Court (Code 1930, sec. 2066).
Trial court's statements in transcript in respect to proceedings held controlling where such statements were positive and definite (Code 1930, sec. 726).
Request that view of premises be had by jury should not be made in presence of jury (Code 1930, sec. 2066).
Request that view of premises be had by jury made in presence of jury should be overruled without objection from opposing litigant, except where opposing litigant joins in request (Code 1930, sec. 2066).
Refusal to retire jury after request whereby opposing litigant is forced to object to requirement that view of premises be had by jury is reversible error, whether or not view is made (Code 1930, sec. 2066).
Whether request for view comes from litigant or from jury, objecting counsel must request retirement of jury in order to complain for reversal because of failure to retire jury, and must make objection to view in open court in presence and hearing of judge and opposing counsel before court and jury depart for premises
Where attorney selected by litigants presides when regular judge is disqualified as authorized by statute, presiding attorney is empowered to rule upon and determine all pertinent questions arising during trial of case, including power to act upon request for view by jury (Code 1930, sec. 737; Const. 1890, sec. 165).
Action by Charlie Bradley against the National Box Company. From a judgment in favor of the plaintiff, the defendant appeals. Judgment affirmed.
On suggestion of error and petition to correct record. Suggestion of error overruled.
For former opinion, see 154 So. 724.
Whittington & Brown, of Natchez, for appellant.
If mistaken in our contention that the lower court should have granted a peremptory instruction, we confidently say to this court that we ought not to be mistaken in our contention that we were entitled to have the motion for a new trial sustained under the holding of this court in cases where the preponderance of the evidence is plainly and conclusively against the plaintiff.
Mobile & Ohio Ry. Co. et al. v. Johnson, 141 So. 581; Mobile & Ohio Ry. Co. v. Bennett, 90 So. 113.
The lower court erred in permitting the jury to view the place and scene of accident. Section 2066, Mississippi Code of 1930, provides for such action by the court, but it is the duty of the court before allowing the jury to view the premises to enter an order providing for such view or inspection and if such order is entered the whole organized court, consisting of the judge, jury, clerk, sheriff and the necessary number of deputy sheriffs, shall proceed in a body to the place.
In addition to other grounds, there was a special judge trying the case, and the order allowing the view is signed only by the special judge.
Section 737, Mississippi Code of 1930; Grinsteau v. Buckley, 32 Miss. 148; Rankin v. Johnson, 56 Miss. 125.
The statute requires that the clerk and the sheriff of the court shall attend with the jury.
Jones v. State, 141 Miss. 894, 107 So. 8.
It was an abuse of discretion in the court to authorize the jury to view the place because of the material changes that had been made and because the situation was entirely different, the machinery entirely different, and the view could throw no light whatsoever upon the questions involved.
There may have been a set screw in the shaft or in the collar on the shaft by which or near which the plaintiff worked and he may have had his clothes caught in such set screw, still that did not show negligence on the part of the defendant.
Seifferman v. Leach, 138 So. 563.
There is shown by the record objection in open court to the trial judge's action in allowing the jury to view the place made at the very time that the court sustained the motion to have the jury view the place.
With all due deference to the trial judge, he was simply and wholly in error when he made the statement on the motion for a new trial as he recalled it some several days after the trial that when he sustained plaintiff's motion for review there was no further objection made to such at that time by the defendant but that the attorney for the defendant stated privately to the court that he expected to renew his objection.
We do not understand that a trial judge can impeach the stenographer's notes or change the stenographer's notes or the record of the proceedings before him that are made by a stenographer. And yet for the court to accept the statement made by the trial judge on the motion for a new trial certainly is an impeachment of the stenographer's notes and the record made by the stenographer of what happened in open court in the trial of the case.
We concede that the order need not have been entered on the minutes before the jury viewed the place. The point we were making was that an order had to be made and that such order could only be made by the regular judge and not by the special judge.
Grinsteau v. Buckley, 32 Miss. 148; Rankin County Savings Bank v. Johnson, 56 Miss. 125. R. L. Corban, Jr., of Fayette, and Engle & Laub, of Natchez, for appellee.
This case was essentially a jury case in that there was a dispute in the evidence as to the construction and height of the machine and the manner in which the appellee was injured. The jury saw fit to believe the appellee.
Guesselich v. Nunez, La. Appeals 1924 Orleans 8659; Marcotte v. Montana, 121 So. 213, 9 La. App. 561; Lusco v. Corkern, 126 So. 540, 12 La. App. 557; Bates v. Strickland, 103 So. 432, 139 Miss. 636; Powell v. Tomlinson, 129 Miss. 658, 92 So. 583; Powell v. Tomlinson, 129 Miss. 354, 92 So. 226.
The jury was not taken to the place of the injury or where the machinery was on plaintiff's motion, but was there taken on the jury's own request to the court.
The ruling of the court permitting the jury to view the scene was "that no testimony be taken at said view and until the jury again is in the box in the courthouse." This was ordered on the day of the trial and at the trial which was the 5th day of December, 1933, but was not placed upon the minutes until the 7th day of December, 1933, then nunc pro tunc.
There was no necessity for the clerk to be present, no testimony being taken at the plant of the National Box Company.
When the evidence in behalf of the plaintiff is sufficient in law to establish legal right of the plaintiff in issue and is not inconsistent with the admitted physical facts or with the natural laws or common knowledge, and, so viewed the plaintiff's testimony taken alone is such that reasonable men, acting reasonably, could believe that testimony and prudently act upon it, then a peremptory instruction for the defendant must not be given.
Mobile & Ohio Ry. Co. v. Johnson, 141 So. 581, 165 Miss. 397; Teche Lines, Inc. v. Passavanti, 140 So. 677, 163 Miss. 93; Teche Lines, Inc. v. Heatherly, 140 So. 680.
The court, on appeal, must accept as true the statements of the trial court of its recollection of the proceeding sought to be reviewed.
Gurley v. State, 101 Miss. 190, 57 So. 565; Turner v. State, 121 Miss. 68, 83 So. 404; Humphrey et al. v. Crorow Hdw. Co., 163 Miss. 490, 140 So. 690.
The only thing seen at the place of accident which was not there at the time of the injury was the larger machine. To see this would be harmless, the jury knowing and having had pointed out to them the smaller machine in the yard, which had inflicted the injury.
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