Chapman v. Chicago & Northwestern Railway Co.

26 Wis. 295

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Dixon, C. J.

The admissions of the defendant Campbell, made by him to the plaintiff Danforth, and, testified to by the latter as a witness upon the stand, were not erroneously received in evidence. It is true, that they were evidence of very little weight. They were hypothetical, made on the supposition that the information he received from Danforth was correct with regard to the origin or cause of the fire. If that information was correct, then he admitted the fact of negligence, and that the railroad company was liable. It is to be presumed that the jury, who knew all the facts, would take the admissions for just what they were worth. If they should find the representations of Danforth correct with regard to the cause of the fire, then they would consider the admissions upon the question of negligence, and it would be right that they should do so, at least as against the defendant Campbell. It is not necessary that admissions, to be received in evidence, should be as of facts within the knowledge of the party making them. They may be made upon information derived from others, and still be given in evidence against the party. This was so held by this court in Shaddock v. Town of Clinton, 22 Wis. 118, 119. The admissions were, therefore, properly received; and, if it was improper for the jury to consider them as against the other defendants, the remedy was by asking a special instruction to that effect; and, inasmuch as no such instruction was asked, the only question before us is, whether they were admissible for any purpose, or as against any of the defendants. Bonner v. Home Ins. Co., 13 Wis. 686. We think, as above stated, that the evidence was admissible against the defendant Campbell; and, that being so, the exception must be overruled.

The alleged written contract between the defendants Barron and Campbell and the defendant railway company, was properly rejected, for the reason given at the time. There was no proof that Dunlap, by whom the contract purported to have been executed in behalf of the company, was the general superintendent as therein represented, or that, as such superintendent, he had any authority to use the name of the company, or to bind it by his signature to such a contract. And the proof offered to show a verbal agreement between the same parties, was also properly rejected on the same ground. That too, as the offer shows, was an agreement with Dunlap, whose authority to make the same or to bind the company was not shown, or offered to be shown.

The exception to the instruction that the jury should award interest from the time of the commencement of the action, upon such damage as they should find the plaintiffs had sustained, must also be overruled. The damage of the plaintiff was the value of the property destroyed. That value was readily ascertained. The amount or quantity of property destroyed being shown, the value was a matter of mere computation. It was, therefore, as if the court had instructed the jury that the damages of the plaintiffs would be the value of the property destroyed, with interest from the time of the commencement of the action. In trespass, trover, or replevin for the same property, taken or converted by the defendants, such would have been the legal rule of damages; or rather, the value with interest from the time of the taking or conversion. Why should not the same rule prevail in this action? We are at a loss to assign any good reason for the distinction, if it can be said that it exists, or if it can be said to be in the discretion of the jury to give interest by way of damages in this case, whilst in the others they must give it as matter of strict legal right. We say we can see no good reason for the discrimination. The object of the rule, or of any rule of damages in any of the cases, is to give just and full compensation for losses actually sustained. It is obvious, regard being had to such compensation, which constitutes the foundation of the rule, that the giving of interest is as essential in this case as in any of the others. It is immaterial to the party who has lost his property, whether it has been taken and converted, or negligently destroyed by the other party. His loss is the same in either case, and in either case he should be entitled to the same compensation. It may be that the authorities do not fully sustain this rule. We are inclined to think they do not; and yet they do not establish the contrary. We find no case in which it has been held that such an instruction was erroneous; and the tendency of modern decisions would clearly appear to be to sustain it. At all events, we are willing to rest our decision upon the reason or principle, which, it seems so apparent, should govern in such cases.

The next exception is as to the instruction given the jury the second time they were called in by the court and asked if they had agreed upon a verdict, or if it was probable that they could agree. The jury desired information upon the point, and the court, reducing it to writing, gave them the' instruction. This was in the absence of the defendants and their counsel, and it is insisted was a privy communication. The cause was given to the jury about '9 o’clock in the morning; when they retired, and the court having continued in session until 3 o’clock in the afternoon, and the jury not then having agreed, an adjournment was had until 9 o’clock in the evening for the purpose of receiving the verdict, if any, and discharging the jury. Such adjournment of the court, and the hour to which it was adjourned, were well known to the defendants and their counsel. At 9 o’clock in the evening, the judge again took his seat upon the bench, pursuant to the adjournment, and the jury were called. Being asked if they had agreed upon a verdict, they replied that they had not; but, in answer to the question whether it was probable that they could agree, they said they thought it was, provided the instructions given them in the morning could he read again, and the testimony of one witness. The written charge was then read, but no portion of the testimony was either read or stated to them. They again retired, and at the end of about one hour were again called in by the court, when the additional instruction was given them at their request. The defendants and their counsel were absent during all this time; and the question is, whether it was a privy instruction or communication to the jury? We think not, ’It was a communication in open court, and in the regular form of judicial proceeding. It was in the presence and hearing of the officers of the court and other persons then in the court room. It was a public communication, as much so as any which had theretofore taken place between the court and the jury. The only difference was, that the defendants and their counsel were not then present. And this brings up the real and only question here, which is as to whether it was the duty of the court to have sent for the defendants or their counsel before proceeding to give the additional instruction as requested by the jury. It will be remembered that the defendants and their counsel knew the hour to which the court had adjourned; and it is also proper to state that the affidavits do not charge the plaintiffs or their counsel, or any person connected with the prosecution of the case, with any fraudulent or dishonest conduct or management, by which the defendants or their counsel were kept away. Their absence may he regarded as the result of pure accident, or at most of excusable neglect. The inquiry then is: Was it the duty of the court to have dispatched a messenger for them, and to have suspended proceedings until their arrival ? It is urged that this was the duty, and that it was irregular and incompetent for the court to proceed without doing so. In support of this view, the generally prevailing custom in our courts to send for attorneys and counsel under such circumstances, is cited. We know this custom or practice, and are far from wishing to discourage it. We think it a beneficial custom, and one that should he observed in all cases where the business or convenience of the court will allow it. We are sorry it was not observed in this case, though the lateness of the hour, and the fact that it was well known to the defendants and their counsel that the court was to convene at that time, may have been regarded as a good excuse. It is the constant custom of this court, whenever it is known that counsel are within reach. But, notwithstanding this custom, and our approval of it, and desire to encourage it, we are by no means prepared to affirm as matter of law that it is the duty of the court at any time to send for absent counsel or suitors, or to await their arrival, before proceeding in causes in which they are interested. On the contrary, we think the duty, the strict obligation of law, is the very opposite. It is the duty of counsel and suitors to be present in court when their causes are moved or any proceedings taken in them; and if they are not, it is at their own risk, and not at the risk of the other party, if the court sees fit not to notify them. The rights of the other party will not be affected, nor the proceedings set aside, on account of such mere omission. The giving of the notice is a matter of grace or favor on the part of the court, and not of legal obligation or duty. The court may proceed without it, subject to the power of opening the proceedings where sufficient cause of absence is shown, and it appears that injustice has been done. The idea that the court cannot proceed without causing the notice to be given, or that it is error to do so, and that it must await the motion and presence of counsel or their clients, would be intolerable ; for then no business could be done and no proceedings taken except by the favor of counsel or of litigants. Such is clearly not the law; and there was no error here in the omission or neglect of the court to send for the defendants or their counsel, under the circumstances disclosed by the bill of exceptions and the affidavits.

With respect to the authorities cited to show that the additional instruction was a privy communication, or in the nature of one, made by the court to the jury, we- deem it unnecessary to make any special comments. In none of the cases where the communication was condemned or held irregular for that reason, was it a proceeding in open court, as here, except the case in 5 Cal. 148, where the practice is regulated by statute, and the giving of further instructions in the absence of parties or their counsel ip positively pro-. hibited. In Campbell v. Beckett, 8 Ohio St. 210, a case strongly relied upon by counsel for the defendants, the further instruction was given during a recess of the court, and in the absence of both parties and their counsel.

The objection that the sheriff, who took charge of the jury when they withdrew to consider the case, was not specially sworn, was waived by the silence of the parties. It is just one of those objections which should have been promptly raised at the time, as it might then have been obviated, but which, not having been so raised, is deemed to have been voluntarily relinquished by the parties, and their assent to the proceeding is presumed. The books are full of such cases, and the following are some among those to be found in the reports of this state: 1 Wis. 401; 13 id. 339, 673; 17 id. 687; 20 id. 540; 14 id. 258; 18 id. 633; 21 id. 632.

And the further objection, that the jury were for the space of three hours left by the sheriff' in the charge of one of his deputies, who was not specially sworn, must also be overruled. It does not appear that the defendants were in any manner prejudiced by the proceeding, conceding it to have been irregular. On the contrary, it conclusively appears that they were not. The deputy makes oath that he kept the jury locked in their room during the whole of such time; that no person or persons whatever had any communication with them ; and that he did not speak a single word to them himself. And as to the report claimed to have been made by the sheriff upon his return, after being sent out by the jury to procure the minutes of the testimony, * it seems very clear to us that there was nothing in it so calculated to injure the defendants or prejudice the minds of the jury against them or their counsel, as to authorize the setting aside of the verdict on that ground. It is very doubtful, from the affidavits, whether the sheriff did report as the defendants’ counsel claims; but if he did, it is very clear from all the facts and circumstances, that it had no such effect as is supposed, or as some of the jurors were led to suppose. No juror deposes that it had any effect upon him, and several depose that it had no influence whatever over them. The jury remained unchanged, for several hours after, and in fact until the further instruction was given at the session of the court late in the evening.

Still another and the last objection, we believe, is to the reading of the minutes of the testimony by some of the jurors. Weary of their confinement in a small room, for the greater part of the day, the jurors requested the sheriff to give. them the use of the court-room, which was much larger and then unoccupied; and the sheriff did so. We see nothing particularly wrong in this. In fact we believe it is quite common, where jurors are out, and the court is not in session, to allow them to occupy the court-room, where they can be more easy and comfortable, or walk about if they desire to do so. But whilst the jury were in the court-room, some of them, without the knowledge of the officer, went' to the judge’s desk, obtained his minutes of the evidence, and read them, or a part of them. It is not shown that the vote or verdict of any juror was in any way influenced by such reading. Those who read or heard the reading, depose that they were not influenced by it. The affidavits establish beyond any doubt that such reading was not with the knowledge or consent, or by the procurement, of any of the parties, or their attorneys or counsel, or any person interested in the action. It was an accident, resulting from the sheriff’s letting the jury into the court-room, a thing which was lawful and proper enough in itself. The rule of law in such case is correctly stated in Ball v. Carley, 3 Ind. 577, where it was held that if the minutes got before the jury by accident, and did not influence their verdict, the verdict would not be set aside.

By the Court. — Judgment affirmed.