agreement with counsel for the plaintiff, 'I don't believe the record showed anything on that score either', page 51. Neither counsel raised any objection as to the answer given to Question 1, and, of course, no objection was raised as to what the Court told the jury regarding Question 2.
Nevertheless, the defendant's counsel takes the position that the failure to summon him to the Courtroom when these questions propounded by the jury were answered amounts to such a denial of due process as to entitle him to a new trial. Counsel relies on Arrington v. Robertson, 3 Cir., 1940, 114 F.2d 821, in which case the opinion was written by Judge Maris, and on Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S. Ct. 435, 63 L. Ed. 853. These two authorities involve very different situations from that present here. In both those cases, the Court sent written instructions to the jury. In the Arrington case there was nothing in the record to show what the inquiry of the jury was or what had been done except that the Court had sent to the jury written points which had been submitted by the plaintiff's counsel.
In the Arrington case, the Court makes it clear why it regards the sending of instructions to the jury from the Judge's Chambers, in the absence of counsel and without notice, as a denial of due process:
'The inquiry of the jury and the trial judge's response were not reported by the court stenographer. The record does not disclose the phraseology of the jury's question. Consequently we cannot know whether the instructions given, even though entirely sound as abstract legal statements, were appropriate to answer it, or whether additional instructions, appropriate and indeed necessary to supplement those given, might not have been suggested to the trial judge by counsel for the defendant if he had been given the opportunity to be present.' 114 F.2d at page 823.
Likewise in the Fillippon case, the Court gave additional instruction to the jury on a very important phase of the case- contributory negligence- by sending a written answer to the jury's inquiry to the jury room without notice to counsel and without any submission of the proposed answer to counsel. Moreoever, the Supreme Court found the instructions given to be erroneous. In Fillippon v. Albion Vein Slate Co., supra, the Supreme Court described the rights of the parties as follows, 250 U.S.at page 81, 39 S. Ct.at page 436:
'We entertain no doubt that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict. Where a jury has retired to consider of (its) verdict, and supplementary instructions are required, either because asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be present; and written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object. Under ordinary circumstances, and wherever practicable, the jury ought to be recalled to the courtroom, where counsel are entitled to anticipate, and bound to presume, in the absence of notice to the contrary, that all proceedings in the trial will be had. In this case the trial court erred in giving a supplementary instruction to the jury in the absence of the parties and without affording them an opportunity either to be present or to make timely objection to the instruction.'
These authorities make it clear that the objectionable feature of both cases was that the Judge instructed the jury without bringing them in Open Court and without making clear upon the record the circumstances surrounding the instruction, so that counsel if present could have suggested corrections or if not present could have taken timely objections. As we have pointed out the instructions given to the jury in this case were given in Open Court, the record clearly shows what was done and counsel were not notified because the Court considered that the questions propounded by the jury required no discussion and could be answered in only one way, with which conclusion counsel agreed upon being informed of what had taken place. Moreover, counsel were given an opportunity to take exception to what was done.
Voluntary absence of counsel at any time between the impaneling of the jury and the return of the verdict is construed as a waiver of the right to be present. Stewart v. Wyoming Cattle Ranche Co., 128 U.S. 383, at page 390, 9 S. Ct. 101, 32 L. Ed. 439; Arrington v. Robertson, supra, 114 F.2d at page 823. Counsel for the defendant seems to suggest that his absence was in reliance on the Court's statement that if further instructions were called for, counsel would be sent for. This does not completely coincide with our impression of what was intended by counsel for the defendant. His statement, page 47, 'I am not too worried about it. I will be in my office during the afternoon.' suggested that he had no intention of remaining in the Courtroom while the jury was deliberating. He did not we believe change his intentions in any way on the basis of what the Court said. The Court raised the question of calling counsel if further instruction was required, but we certainly did not mean that we would call counsel under all circumstances regardless of what the further instruction might be. It is not, we think, too much to state that had we summoned counsel to return to the Courtroom while the Court answered the questions submitted by the jury, he would have regarded it as an unnecessary imposition on his time. We certainly considered it unnecessary to summon either counsel. The conduct of defendant's counsel may very well be considered as a waiver of his right to be present, at least to the extent of relying on the judgment of the Court as to whether he needed to be present when the jury received further instruction.
Finally, even if our failure to summon counsel for the parties before we answered the questions submitted by the jury was error, we believe that the defendant's motion must be denied under Rule 61 of the Federal Rules of Civil Procedure, 28 U.S.C., since the error was not in any sense prejudicial to the defendant. To hold otherwise would require us to say that the defendant was prejudiced by the absence of its counsel, even though the instructions which were given in his absence were later acquiesced in by him and even though they in no way prejudiced the defendant's rights.
The defendant's motion for judgment or a new trial is denied.
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