Practice, Civil, New trial. Jury and Jurors. Evidence, Expert: opinion; Relating to deliberation by jurors; Competency.
The mere facts, that seven actions of tort, after their trial together during a period of two weeks, were submitted to a jury at half past twelve o'clock on an afternoon and were considered by the jury continuously in one room without beds or sleeping accommodations until about twenty minutes past eleven o'clock on the next forenoon, with the exception of time for meals and a short walk, do not as a matter of law require the allowance, after verdicts for the defendant, of motions by the plaintiffs for a new trial, nor render the disallowance of such motions an abuse of judicial discretion. Whether the propriety of the action by the trial judge in keeping the jury in session properly could be raised by exceptions to requests for rulings at the hearing of the motions, or whether the exceptions should have been taken before the recording of the verdicts, was not determined. Questions as to the illness of a juror during deliberations of the jury after a case has been submitted to them and its effect on him and his capacity to act as a juror, and as to the propriety of continuing the jury's deliberations in the circumstances are for determination by the trial judge in the exercise of his discretion; and, where it appears that, when notified of the illness of the juror, the judge had him examined by a physician, who reported him able to continue consideration of the case, that the judge then found him to be so able, that neither party, upon being informed of the circumstances, expressed a willingness to have the deliberations of the jury go forward with eleven jurors only or made a suggestion that a mistrial then be declared by reason of the juror's illness, and that a verdict afterwards was recorded for the defendant without objection on the part of the plaintiff, a denial of a motion for a new trial based on the ground of the juror's illness cannot be said as a matter of law to have shown an abuse of judicial discretion. Failure by a trial judge to discharge a jury from consideration of a case was held not to constitute a violation of G.L.c. 234, § 34, where it appeared that the jury received the case at 12:30 P.M. on one day and, with intermissions for meals and a short walk only, continued their deliberations until 11:20 the next morning; that shortly after 8 A.M. and at 9:45 A.M. the foreman asked the officer in charge to notify the judge that the jury could not agree; that such notice was given to the trial judge when he arrived at the court house at about 9:45 A.M.; that at about 10:20 A.M. the court officer again was notified by the foreman that the jury could not agree and the notification was communicated to the trial judge; that at no time did the jury return to the court room; that, after conferences between the judge and counsel for the parties, the deliberations of the jury were not interrupted; and that the jury finally reached a verdict which was returned at 11:20 A.M. The mere fact that a member of the jury considering the cases in the circumstances above described asked a court officer how long they were to stay out and was told, "Until you agree, I expect," did not entitle the plaintiffs to a new trial as a matter of right. Irregularities during a jury trial cannot always be prevented, and, where there is no intentional wrong and no certain injury to the cause of justice, a fair trial need not be declared void because of an irregularity; on such a point much must be left to the investigation and conclusion of the trial judge. The refusal by the trial judge to accede to a request, transmitted to him by the jury during the deliberations above described, for a microscope or magnifying glass did not as a matter of law require the allowance of the motions for a new trial nor render their denial an abuse of judicial discretion. Affidavits by several jurors touching what took place in the jury room and the motives, inducements, principles and reasons which moved them and their fellows to a verdict properly were excluded at the hearing of the motions for a new trial above described.
RUGG, C.J.
These exceptions relate to the denial of motions for a new trial.
It is the general rule that the disposition of a motion for a new trial commonly rests in sound judicial discretion. Commonwealth v. Russ, 232 Mass. 58, 82. Davis v. Boston Elevated Railway, 235 Mass. 482, 495-497. Matter of Sleeper, 251 Mass. 6, 22. There is nothing in the present record which makes the cases at bar exceptional in that respect.
It is urged that, because the cases were given to the jury about half past twelve o'clock in the afternoon of October 28 and were considered continuously with the exception of time for meals and a short walk until about twenty minutes past eleven o'clock of the following forenoon, a period of almost twenty-three hours, when verdicts were returned in favor of the defendants, the verdicts ought to be set aside because rendered by tired and exhausted men. It is doubtful whether this question can be raised on a motion for a new trial and whether it ought not to be raised by exception taken before verdict. Commonwealth v. Dascalakis, 246 Mass. 12, 24. Lonergan v. American Railway Express Co. 250 Mass. 30, 38, 39. But we assume in favor of the plaintiffs that it is open to them. There was no error in the length of time for which the jury was required to consider the cases. That lies in the sound judicial discretion of the trial court. There is nothing to indicate abuse of that discretion in the cases at bar. Commonwealth v. Bowden, 9 Mass. 494. Commonwealth v. Purchase, 2 Pick. 521. Commonwealth v. Roby, 12 Pick. 496, 502. Commonwealth v. Townsend, 5 Allen, 216. Commonwealth v. Sholes, 13 Allen, 554, 556. See Commonwealth v. McCormick, 130 Mass. 61, 62; Commonwealth v. Cody, 165 Mass. 133, 136; Edwards v. Worcester, 172 Mass. 104, 105; Highland Foundry Co. v. New York, New Haven Hartford Railroad, 199 Mass. 403, 409.
During the deliberations of the jury, one juryman complained of being sick from indigestion and heart trouble. The judge sent for a physician and instructed him under appropriate conditions to attend the ailing juror and to advise whether he was able to continue further consideration of the case. The physician reported to the judge that the juror had substantially recovered and could in his opinion continue further consideration of the case. An officer in charge of the jury inquired thereafter about once an hour during the remainder of the night whether the juror was able to go on, and was told that he was. The judge found as a fact upon all the evidence that the juror was able to perform his duty. In all this there was no error. The hypothetical question to the physician on cross-examination at the hearing on the motions for new trial was rightly excluded. Questions as to the illness of a juror and its effect on him and on his capacity to act as a juror were for the trial judge to determine. Hubbard v. Gale, 105 Mass. 511. Nichols v. Nichols, 136 Mass. 256.
There was no violation of G.L.c. 234, § 34, to the effect that, if a jury after due and thorough deliberation return to court a second time without having agreed upon a verdict, they shall not be sent out again without their own consent, unless they ask for some further explanation of the law. It is too clear for discussion that the mere statement to the officer in charge that they could not agree was not a foundation for the application of this statute. The jury in fact returned to court only once and then to declare their verdicts.
One juror asked a court officer how long they were to stay out and was told, "Until you agree, I expect." This incident did not entitle the plaintiffs to a new trial as matter of right. Irregularities during a jury trial cannot always be prevented, and where there is no intentional wrong and no certain injury to the cause of justice, a fair trial need not be declared void because of an irregularity. On such a point much must be left to the investigation and conclusion of the trial judge. Leach v. Wilbur, 9 Allen, 212. Nichols v. Nichols, supra.
There is nothing in the argument that the failure to send a microscope or magnifying glass to the jury on its request required a new trial as matter of law. The disposition of such a request during the deliberations of the jury rested in the sound discretion of the court. The denial was no error. Burghardt v. Van Deusen, 4 Allen, 374. Boston Dairy Co. v. Mulliken, 175 Mass. 447.
Reception of affidavits by several jurors touching what took place in the jury room and the motives, inducements, principles and reasons which moved them and their fellows to a verdict was rightly refused. This point is too well settled to warrant further elucidation. Woodward v. Leavitt, 107 Mass. 453. Simmons v. Fish, 210 Mass. 563, 571. Randall v. Peerless Motor Car Co. 212 Mass. 352, 386, 387. The deliberations of a jury room cannot be thus invaded.
All the points argued by the plaintiffs have been decided. It is not necessary to consider whether their conduct at the trial does not also prevent them from taking advantage of several of them.
Exceptions overruled.