Dixon v. A. J. Cunningham Co.

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 *70 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, *71 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■