Lutz v. Goldblatt Bros., Inc.

• Citation: 225 N.E.2d 843,140 Ind.App. 678
• Decision Date: 05 May 1967
• Docket Number: No. 20408,No. 2,20408,2
• Parties: Alice May LUTZ, Appellant, v. GOLDBLATT BROTHERS, INC., also known as Goldblatt's, also known as Goldblatt's Department Store, Appellee
• Court: Court of Appeals of Indiana

Page 843

225 N.E.2d 843

140 Ind.App. 678

Alice May LUTZ, Appellant, v. GOLDBLATT BROTHERS, INC., also known as Goldblatt's, also

known as Goldblatt's Department Store, Appellee.

No. 20408.

Appellate Court of Indiana, Division No. 2.

May 5, 1967.

Rehearing Denied May 17, 1967.

Roland Obenchain, Jr., Thomas F. Lewis, Jr., South Bend, for appellant.

Arthur A. May, Thomas H. Singer, Crumpacker, May, Levy & Searer, South Bend, for appellee.

PFAFF, Presiding Justice.

Appellant brought this action to recover damages by reason of injuries allegedly sustained when she slipped and fell on the premises of appellee, the proprietor of a store. Trial by jury resulted in a verdict for appellee.

Three interrogatories were submitted to the jury and much of appellant's argument concerns these. For the purpose of this appeal it is not necessary to set forth these interrogatories or their answers. Regardless of how they might have been answered they did not cover sufficient facts so as to form the basis of a motion for judgment on the interrogatories notwithstanding the verdict.

After the jury had deliberated for an undisclosed length of time it returned into open court with a verdict in favor of the defendant-appellee. At the same time it presented answers to the interrogatories, the exact wording of which is not in the record, but which indicated that the jury was not unanimous in such answers. Thereupon counsel for appellant moved that the court declare a mistrial and discharge the jury. The court did not expressly rule on this motion, but directed the jury as follows:

'Ladies and Gentlemen: The interrogatories that you submitted to the court showing your findings in Interrogatories One, Two and Three are how rehanded to Mr. Baer, the foreman, with this court's instruction: You should retire to the jury room and come back with a definite answer by all of you jurors that must be in unanimity. All answers must be 'yes' 'no' or 'no evidence' by all Twelve. If it is impossible for you to agree within a reasonable time, this court will call you back into the court room. You will now again retire.'

Appellant also presents as error the ground of her motion for a new trial that the court erred in not making any ruling on her motion for a mistrial. Following the return of the jury again into open court with unanimous answers to the interrogatories, the court indicated that it intended to enter an express ruling of record, but appellant objected to its being entered at that time.

There was no error in making an express ruling denying the motion. The motion for a mistrial was effectually denied by the court when it sent the jury back to deliberate further on the answers to the interrogatories.

As stated in 20 I.L.E. Motions § 4, p. 308:

'The determination of a motion need not always be express, but it may be implied. So, where an order is entered which is inconsistent with the granting of the relief sought, there is a denial of the motion.' Long v. Ruch (1897), 148 Ind. 74, 47 N.E. 156; Blemel v. Shattuck (1892), 133 Ind. 498, 33 N.E. 277; See also 60 C.J.S. Motions and Orders § 38, p. 37.

Appellant next contends that it was error to resubmit the interrogatories and give additional 'instructions' regarding the same after the jury had first returned its verdict and answers.

Our Supreme Court has stated the law in the case of Perry, etc., Stone Co. v. Wilson (1903), 160 Ind. 435, 439, 67 N.E. 183, 184, as follows:

'If the jury were unable to agree upon the answers to said interrogatories, it was their duty to report such fact to the court, and, if finally unable to agree, the courr should have discharged the jury on account of such disagreement, the same as in a case where a jury cannot agree upon a general verdict.' (Emphasis supplied).

To the same effect is the case of S.W. Little Coal Company v. O'Brien Administratrix (1917), 63 Ind.App. 504, 520, 113 N.E. 465, 114 N.E. 96. See also Kingan and Co. v. Albin, Admx. (1919) 70 Ind.App. 493, 503, 123 N.E. 711. Burns' Ind.Stat.Anno. § 2--2018, p. 445 (1946 Replacement) provides:

'The jury may be discharged by the court, on account of the sickness of a juror, or other accident or calamity requiring the discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing. (Acts 1881 (Spec. Sess.), ch. 38, § 385, p. 240.)'

Appellant says that the court erred in not making an effort to determine whether there was any probability that the jury could agree upon the answers. There is nothing presented to us showing how long the jury had been kept together when it first returned into open court with the indication of disagreement as to the answers. Such length of time is one material element to be considered by the court.

53 Am.Jur., Trial, § 962, p. 677, provides:

' § 962. Time Jury Is Kept Together--Directing Further Deliberations.--How long a jury is to be kept in deliberation is a matter resting within the sound judicial discretion of the trial judge. His action in keeping them confined for a reasonable time, refusing to discharge them at their request, or sending them back for further deliberation, does not as a rule amount to coercion of the verdict. No specific period can be designated, nor can any absolute rule be laid down, to control the court's discretion. So long as further argument and comparison of views may aid in bringing about a unanimous verdict, jurors may properly be kept together to continue such comparison of views and statement of argument. * * *'

See also 53 Am.Jur., Trial, § 1001, p. 694. In 89 C.J.S. Trial § 462, p. 93, it is stated:

'If the jury report a disagreement, the judge may keep them together for further deliberation for a reasonable length of time and until he is satisfied that they have made an honest effort to agree. * * *'

In 93 A.L.R.2d, § 4, p. 636, the rule is stated as follows:

' § 4. Discretionary whth trial court.

The general rule, as stated in Am.Jur., Trial (1st ed. § 962) with respect to all types of jury cases, both civil and criminal and including cases where the complaint was that the judge prematurely discharged the jury, is said to be that the length of time a jury may be kept in deliberation is a matter resting within the sound discretion of the trial judge, and that his action in keeping them confined for a reasonable time, refusing to discharge them at their request or sending them back for further deliberation, does not ordinarily by itself constitute an abuse of discretion or amount to conduct which will be considered improper as influencing or coercing the jurors into reaching an agreement.

'The rule has been recognized in many of the cases considering the reasonableness of the length of time that a disagreeing jury was required to deliberate, or considering the effect of instructions or remarks of the trial judge concerning the length of time that he might require a disagreeing jury to continue deliberation. Thus the following decisions recognize or state generally that the determination of how long a disagreeing jury will be kept together and required to continue their deliberations is a matter of sound judicial discretion, so that in the absence of circumstances showing an abuse of that discretion the judge's refusal or failure to discharge the jury will not be disturbed.'

On appeal it is presumed that the decisions, rulings and judgment of the trial court are correct until the contrary is shown, and every reasonable presumption is indulged in favor of the trial court's action. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, ch. 56, § 2790, p. 370, with cases cited. See also Wiltrout, Indiana Practice, ch. 103, § 2790, p. 493, with cases cited.

There is nothing presented to us which would show an abuse of judicial discretion on the part of the trial court in requiring such further deliberation.

Next appellant complains that she was not given an opportunity to object to such additional 'instruction'; in other words, it is contended that both parties had requested the court to instruct the jury in writing; that it was error to give such oral 'instruction'; that a written instruction should have been prepared and an opportunity given to the parties to state their objections before it was given. However, it has been determined on numerous occasions that such an oral direction as that given by the court in this case is not an instruction within the meaning of the law, and that there was no error in giving this direction orally. McCallister v. Mount (1881), 73 Ind. 559, 567; Lehman v. Hawks et al. (1890), 121 Ind. 541, 23 N.E. 670; Trentman et al v. Wiley et al. (1882), 85 Ind. 33; Peelle v. State (1903), 161 Ind. 378, 68 N.E. 682; Lett v. Eastern, etc. Plow Co. (1910), 46 Ind.App. 56, 91 N.E. 978.

A similar situation to that in this case occurred in Hatfield v. Chenowith (1899), 24 Ind.App. 343, 56 N.E. 51, wherein this court said:

'The record shows that when the verdict was returned, and it was found that two of the interrogatories had not been answered, the appellant moved that the jury be required to return to their room, and answer the remaining interrogatories. This motion the court sustained, and orally stated to the jury, in substance, that, if there was any evidence relating to the facts sought to be elicited by questions 4 and 8, they should answer them; but, if there was no evidence, then they might return as their answer that there was no evidence. It is argued that this was an oral instruction, and, as a request had been made at the proper time that the court instruct the jury in writing, it was reversible error to give such oral instruction. If it can be said that this was an instruction within the meaning of the term, it was an error to give it, for it is well settled that, where the proper request has been made for all instructions to be given in writing, it is error to give oral...