
    Krieger's Cleaners & Dyers Co. v. Benner.
    (Decided November 3, 1930.)
    
      
      Messrs. Baker, Hostetler & Sidlo, for plaintiff in error.
    
      Messrs. Newcomb, Newcomb & Nord, for defendant in error.
   Levine, J.

This cause comes into this court on error proceedings from the common pleas court of Cuyahoga county, wherein the present defendant in error, Ruth M. Benner, as plaintiff, filed a petition seeking a vacation and setting aside of a certain judgment previously rendered against her in the common pleas court.

The ground set forth in the petition to vacate was an alleged irregularity on the part of the trial judge in this, to-wit, that without notice to either counsel, and in their absence, he gave instructions to the jury after the case was submitted to it, relative to certain questions of law concerning which the jury sought further enlightenment.

The common pleas court found that such irregularity existed, and for that reason vacated the judgment previously rendered against the defendant in error and ordered a new trial of her case on its merits.

We are not unfamiliar with this litigation as certain phases of it came to our attention in previous eases between the same parties.

Ruth M. Benner, defendant in error, filed a suit in the common pleas court, entitled Ruth Benner v. Krieger’s Cleaners & Dyers, Inc. This cause came up for trial at the April, 1928, term of that court and resulted in a verdict for the defendant. A motion for new trial having been overruled, error was prosecuted to the Court of Appeals, wherein the judgment of the common pleas court was affirmed.

While said error proceedings were still pending in the Court of Appeals, during the month of October, 1928, information was brought to the attention of counsel for Euth M. Benner to the effect that at the trial of her cause the court had given additional instructions to the jury in the absence of counsel for both parties, and in the absence of plaintiff and the court stenographer. Counsel thereupon proceeded at once to interview witnesses and to procure affidavits. Within a few days she filed her petition for a new trial, under authority of General Code, Section 11580, which permits such proceedings.

The petition sets forth that evidence was discovered after term, showing an irregularity in the proceedings of the court, in that additional instructions had been given 'to the jury without notice to and in the absence of counsel for both parties.

Shortly after the petition for a new trial was filed, counsel for the Krieger’s Cleaners & Dyers, Inc., filed a motion to dismiss on the ground that the error proceedings to the Court of Appeals from the decision in the original case between the parties were still pending in the Court of Appeals; that therefore the court of common pleas had no jurisdiction to hear said petition for a new trial.

The court granted the. motion and dismissed the petition for a new trial on the ground of lack of jurisdiction in the common pleas court, since error proceedings prosecuted in the original action were still pending in the Court of Appeals.

Counsel for Ruth Benner prosecuted error to the Court of Appeals seeking a reversal of the ruling of the common pleas court dismissing the petition for a new trial.

In the Court of Appeals both petitions in error, namely, the petition in error filed by Ruth M. Benner, seeking a reversal of the judgment against her in the original case between the parties, and the petition in error filed by Ruth M. Benner seeking a reversal of the ruling of the common pleas court dismissing the petition for a new trial on the ground of lack of jurisdiction, were heard jointly and considered by this court. This court affirmed the judgment in the original case and reversed the ruling of the common pleas court dismissing her petition for a new trial, ante, 7, 175 N. E., 867. After this court ordered a reversal of the ruling of the common pleas court on the petition for a new trial, the petition again came on to be heard before a judge of the common pleas court on May 26, 1930. Evidence was taken, the case was fully argued by counsel, and the trial resulted in a finding for the plaintiff, Ruth M. Benner, vacating the judgment in the original case and ordering that she be granted a new trial in said case. It is from this finding that error proceedings are prosecuted to this court.

Three assignments of error are set forth:

“1. The judgment of the court was clearly against the weight of the evidence, plaintiff having totally failed to make out a case.
“2. Due diligence on the part of plaintiff in discovering the acts which she claims were prejudicial was not shown.
“3. Under the law as represented by the decisions throughout the United States, and particularly in Ohio, the acts of the trial judge in the original case complained of by plaintiff would not, even if proven true, justify a vacation of the judgment previously rendered by the court of common pleas and affirmed by this court. In other words, plaintiff in error, submits, as the third reason why the court below acted improperly, that even though the trial court in the original case may have reinstructed the jury in the absence of counsel (a fact which plaintiff contends is not borne out by the evidence), nevertheless this would not in itself constitute error on the part of the court. In fact, the decisions show not only that the reinstructioh of the jury, under such circumstances as are here claimed, was not only not prejudicial error but was indeed entirely proper on the part of the original trial court.”

In order to reverse a judgment as manifestly against the weight of the evidence it is requisite, under the mandatory provisions of the Ohio Constitution, that all three members of the Court of Appeals agree that it is manifestly against the weight of the evidence.

We have perused the record, as well as the briefs of counsel, and in our opinion there is evidence in the record supporting the theory of counsel for Ruth M. Benner that without notice to, and in the absence of counsel, for either side, and of the parties, the court upon being requested by the jury to give additional instructions did so give additional instructions relative to the law of contributory negligence. Judge McMahon, who presided in the original case, appeared on the witness stand. He did not testify to the effect that no additional instructions were given without notice to and in the absence of counsel. He stated that he had no recollection of ever having given additional instructions. He stated further that his invariable custom was to notify counsel. Had Judge McMahon entertained a definite recollection to the effect that no such additional instructions were given, we would, as a matter of public policy, feel inclined to base our judgment on the testimony of the trial judge in preference to the testimony of outsiders who testified to a different effect. We appreciate that to do otherwise would cause confusion and would be destructive to the ends of justice.

This statement is analogous to the reasoning which supports the rule that the certificate of the trial judge attached to a bill of exceptions, setting forth that the same is a true copy of all the evidence and proceedings in a given case, cannot be contradicted or disputed by extraneous evidence. The trial judge, however, had no recollection on the subject.

The evidence submitted by counsel for Ruth M. Benner, as it came from the mouth of witnesses who testified before the trial judge in support of the petition for a new trial, indicates clearly that in the original case the trial judge upon request coming to him from the jury, after the case was submitted to them, gave additional instructions to them on the question of contributory negligence, without notice to, and in the absence of, counsel for both sides.

We are unable to reach the conclusion that a reversal would be justifiable on the ground that the judgment of the common pleas court was manifestly against the weight of the evidence.

As to the claim that due diligence was not exercised by Ruth M. Benner, or her counsel, in discovering the facts which she claims were prejudicial, it is urged that had such due diligence been exercised she or her counsel could have discovered those facts prior to the expiration of the term during which the case was heard, and that had such due diligence been exercised a motion for new trial could have been filed during the same term, setting forth the irregularities which are now contained in the petition for new trial.

A perusal of the record does not, in our opinion, support this claim of lack of diligence. There is reliable evidence in the record to the effect that the first information which was brought to the attention of counsel for Ruth M. Benner, concerning the alleged irregularities, was in October, 1928, which was after the term during which the original case was tried.

We agree with counsel for defendant in error that the attorneys have a right to assume that the/ proceedings were regular in every respect. There is always a presumption that the procedure in all courts is regular. If upon being informed that irregularities took place, counsel takes immediate action to bring the same to the attention of the court, the element of due diligence is fully satisfied.

As to the third assignment of error, it is ably argued by counsel for plaintiff in error that the action of the trial judge in giving additional instructions after the jury had retired to deliberate is governed by Section 11452, General Code: “After the jurors retire to deliberate, if they disagree as to the testimony, or desire to be further informed on the law of the case, they may request the officer in charge to conduct them to the court, which shall give the information sought upon matters of law, and also, in the presence of or after notice to the parties or their counsel, may state its recollection of the testimony upon a disputed point.”

The interpretation sought to be given to this section is that the court may give the jury any information they seek upon matters of law, without notice to and in the absence of parties or their counsel; that only when the court desires to state its recollection of the testimony upon a disputed point is it necessary to give notice to the parties or their counsel unless counsel are present at the time.

Applying this interpretation of the statute to the instant case, it is urged by counsel for plaintiff in error that at most the alleged irregularity consisted of the action of the trial judge in giving instructions to the jury upon their request without notice to and in the absence of counsel for either side; that under the provisions of the Code the trial judge is permitted to give instructions to the jury upon questions of law, without notice and in the absence of counsel, after it retires to deliberate, and that therefore no error was committed by the court in having given such instructions.

We are referred to a number of decided cases which seein to indicate such interpretation of the Code.

In the proceedings in error which were prosecuted to this court from the order of the common pleas court dismissing the petition for a new trial of Ruth M. Benner, Benner v. Krieger’s Cleaners & Dyers, Inc., ante, 7, 175 N. E., 867, this court held that a defeated party has a statutory right to file, after term, a petition for a new trial on the ground of irregularities occurring during trial and newly discovered evidence which did not come to the knowledge of counsel until subsequent to the' term at which trial was had, and it is the duty of the trial court to hear such a petition and the supporting evidence and render the judgment thereon which the facts require, subject to prosecution of error thereto. The mere fact that the final judgment was entered by the trial court following the original hearing, and that an error proceeding was perfected and filed in the court of appeals, and even a hearing had thereon and the judgment affirmed, affords no ground for a denial of this right, nor could it be made the basis for a claim of res judicata at the subsequent hearing. The granting of further instructions to a jury, in response to a request from them so to do made during their deliberations, constitutes reversible error, where such instruction is given in the absence of counsel, and without any effort being made tp secure their presence.

We feel that we are bound to follow our own decisions unless the same are subsequently reversed by the Supreme Court. In said opinion we definitely stated that the petition for a new trial set forth a sufficient cause of action, and remanded the same for a new trial.

The question whether or not, after the jury retired to deliberate, instructions given the jury upon certain phases of the law applicable to the case, without notice, and in the absence of counsel, constituted error, was necessarily involved in the decision of reversal. This court could not have reversed the ruling of the trial court which dismissed the petition for a new trial unless it also held that giving such instructions upon questions of law, without notice to and in the absence of counsel, comes within the provisions of Section 11452, General Code.

On authority of Gohman v. City of St. Bernard, 111 Ohio St., 726, 146 N. E., 291, 41 A. L. R., 1057, we hold that the decision reversing the order of the common pleas court, which dismissed Ruth M. Benner’s petition for a new trial, constitutes the.law of the case, and we are therefore unable to adopt the interpretation of plaintiff in error of the language of said section.

There is no doubt that the decision of reversal inferentially amounted to a holding that the trial court is prohibited from giving any instructions to the jury upon any subject, after it retired to deliberate, without notice to and in the absence of counsel.

The syllabus in the case of Campbell v. Beckett, 8 Ohio St., 210, supports our view. It reads as follows:

“It is error for a judge, during a recess of his court, in the absence of the party and his counsel, and without notice to them, to give instructions to the jury to whom the case has been submitted. ”

The purpose sought to be accomplished by the provisions of Section 11452, General Code, seems to us quite clear. The presence of the parties and their counsel, or an opportunity to be present, is deemed necessary in order that counsel may be apprised of the court’s action, and in order that counsel may-enter objection and take proper exceptions when counsel deems the same necessary.

The same reason seems to be present no matter what the subject of the instructions by the court may happen to be.

If the trial court were permitted to instruct the jury on questions of law without notice to and in the absence of counsel, the losing party would be put at a great disadvantage in not being able to except to the action of the court no matter what the court did and no matter what the court said. It would, in our opinion, open the door to unlimited abuse of discretion on the part of the trial judges, if they were so inclined.

Considering the purpose sought to be accomplished by the legislative enactment in enacting the provisions of Section 11452, General Code, it is our opinion that the limitation upon the power of the court which requires that instructions be given in the presence of or after notice to the parties or their counsel applies to all instructions, whether dealing with the court’s recollection of the testimony upoh a disputed point or with information sought by the jury upon matters of law.

Holding as we do, the judgment of the court of common pleas is therefore affirmed.

Judgment affirmed.

Vickery, P. J., and Cline, J., concur.  