Woodard v. Sanderson
| Decision Date | 11 October 1921 |
| Docket Number | Case Number: 10202 |
| Citation | 201 P. 361,83 Okla. 173,1921 OK 346 |
| Parties | WOODARD v. SANDERSON. |
| Court | Oklahoma Supreme Court |
¶0 1. New Trial--Grounds--Smallness of Damages--Statute. Section 5043, Rev. Laws 1910, which provides that a new trial shall not be granted on account of the smallness of the damages, in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained, denies the right to grant a new trial in the kind of actions therein named on account of the smallness of the damages awarded.
2. Appeal and Error--Harmless Error--Statute. Section 6005, Rev. Laws 1910, provides: "No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."
3. Same--Conduct of Jury--Communication with Judge. After a careful examination of the entire record, held that, in the opinion of the court, it does not appear that the errors complained of in the second assignment of error probably resulted in a miscarriage of justice, or constitute a substantial violation of a constitutional or statutory right.
4. Same--Necessity for Prejudicial Error. While it is undoubtedly true that no communication whatever affecting the decision of the cause ought to take place between the judge and the jury after the cause has been presented to them unless in open court in the manner prescribed by the statute, it is also true that is not every irregularity which will render the verdict void, and warrant setting it aside. This, as we have seen, depends upon another and additional consideration namely, whether the irregularity is of such a nature as to affect the impartiality, purity, and regularity of the verdict itself.
William F. Tucker and Hulette F. Aby, for plaintiff in error.
George E. Reeves, for defendant in error.
¶1 This was an action to recover damages for malicious assault and battery, commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below. Hereafter the parties will be designated "plaintiff" and "defendant,' respectively, as they appeared in the trial court. The petition prayed for damages in the sum of $ 25,000. The answer was a general denial and allegations to the effect that the injuries received by the plaintiff, if any, were inflicted by the defendant in repelling an attack upon him by the plaintiff, and that in repelling such attack he used no more force than was necessary to restrain the plaintiff from committing and continuing an assault upon him. The reply was a general denial of the new matter alleged in the answer. Upon trial to a jury there was a verdict for the plaintiff in the sum of $ 1 and costs, to reverse which this proceeding was commenced by the plaintiff. There are two grounds for reversal argued by counsel for plaintiff in their brief: First, the smallness of the damages awarded by the verdict; and, second, misconduct of the jury. The first ground for reversal has been decided adversely to the contention of counsel for plaintiff in error in Missouri, K. & T. Ry Co. v. Lindsey, 82 Okla. 165, 198 P. 1000. In that case an appeal was taken by the defendant from the action of the trial court in granting a new trial upon the sole ground that the damages awarded by the verdict were too small. The court, after reviewing the authorities, and particularly the case of Metropolitan Street Ry. Co. v. O'Neill, 68 Kan. 252, 74 P. 1105, reached the conclusion that section 5043, Rev. Laws 1910, which provides that a new trial shall not be granted on account of the smallness of the damages, in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained, denies the right to grant a new trial in the kind of action therein named on account of the smallness of the damages awarded, and to grant one is error. While it is true that because the question was briefed only on one side in that case the court contented itself with reversing the judgment under a rule of court, after reconsidering the question in the case at bar, where it is fully and ably briefed on both sides by eminent counsel, we are convinced that the conclusion reached in the former case is correct and is supported by the great weight of authority. The second ground for reversal is stated by counsel in their brief as follows:
"Where one juror, at the request of the jury, absents himself from the jury and jury room and returns to the court room and holds a whispered conference with the judge who tried the case, in which the judge is advised that the jury is not agreed, and how the jury stands, and such juror asks for and receives certain instructions with reference to the law or the deliberations of the jury, all without the knowledge of the plaintiff or his attorneys, the instruction not being given in writing or preserved, and such juror thereupon returning to the jury room and jury, and delivering what he says were the instructions given him by the court, the plaintiff has not had a trial by jury as provided for by the laws of the state of Oklahoma, and is entitled to a new trial."
¶2 The precise facts upon which this assignment of error is predicated may be briefly summarized as follows: After the trial was completed the jury retired in charge of a bailiff for deliberation. After several ballots had been taken the foreman of the jury asked the bailiff to take them before the court, which was then in session in the trial of another case. In pursuance of this request the bailiff locked the remaining jurymen in the jury room and accompanied the foreman into court, where the following transpired, according to the testimony of the foreman, which was not disputed:
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