Opinion
Decided June, 1894.
It is no ground for setting aside a verdict that the jury were given further instructions in the absence of parties and counsel.
CASE, for personal injuries. Trial by jury. Verdict for the defendants. The plaintiff moved to set aside the verdict, and also that a new trial be granted, because, upon the request of the jury for further instructions, they were brought into court and so instructed in the absence of the plaintiff and his counsel. The motions were denied, and the plaintiff excepted.
Thomas Leavitt and Frink Batchelder, for the plaintiff.
Calvin Page, for the defendants.
The jury, by their own request, were brought into court and given further instructions, in the absence of the plaintiff and his counsel. It is not stated what the instructions were, and there was no request for such statement. There is no complaint that they were not correct or applicable, but a suggestion merely that they may not have been. It was the plaintiffs right to have them stated if he wished it; and in the absence of such statement it must be presumed they were correct and such as the facts of the case called for.
The additional instructions were given in open court. That this may properly be done is not an open question in this state (Ahearn v. Mann, 60 N.H. 472, 476), and in other jurisdictions. Kullberg v. O'Donnell, 158 Mass. 405; Chapman v. C. N.W. Railway Co., 26 Wis. 295. It is also matter of familiar practice in this state that written instructions may be sent to the jury without notice to counsel when the court is not in session, to be returned and filed with the verdict. Shapley v. White, 6 N.H. 172; School District v. Bragdon, 23 N.H. 507, 517; Bassett v. Salisbury Co., 28 N.H. 438; Allen v. Aldrich, 29 N.H. 63; State v. Prescott, 67 N.H. 203.
It is the duty of parties or their counsel to be present while the court is open until the trial is concluded. Kullberg v. O'Donnell, supra; Chapman v. C. N.W. Railway Co., supra. The fact that the plaintiff and his counsel absented themselves while the jury were deliberating upon their verdict, did not deprive the judge of his right and duty to give such further instructions as would aid the jury in arriving at a correct verdict. To hold otherwise would put it in the power of a party or his counsel, by absenting himself, to obstruct the business of the court, and would increase the risk of a verdict founded on an imperfect understanding of the principles of law applicable to the case.
Exceptions overruled.
BLODGETT, J., did not sit: the others concurred.