Burns Ex Rel. Burns v. North State Laundry, Inc.

Adams, J. The court charged the jury on the afternoon of Thursday and excused them until the following Monday, and subsequently until Tuesday. For four days they were separated. When they returned to the courthouse on Tuesday morning to resume their deliberations the foreman inquired of the attending officer whether the judge would not again read his charge to the jury, but the officer “did not convey to the court the message of the foreman.” On the same morning at the instance of the defendant’s counsel the court gave the jury additional instructions. The request for these instructions was not made in open court or in the presence of the jury or of the attorney for the plaintiff. There is an intimation in the defendant’s brief that the request was made at Chambers. This, however, is not necessarily the decisive question. It is true as a general rule that all parties to an action when properly in court are charged with notice of proceedings which subsequently take place while the action is pending and the court is in session. University v. Lassiter, 83 N. C., 38; Williams v. Whiting, 94 N. C., 481; Spencer *147 v. Credle, 102 N. C., 68; Coor v. Smith, 107 N. C., 430. It is true, also, tbat tbe court while in regular session may, except in certain cases, give further instructions, although counsel are not present. Biggs v. Gurganus, 152 N. C., 173; Bank v. Florida-Carolina Estates, Inc., 200 N. C., 480. See, also, In re Will of Yelverton, 198 N. C., 746. This rule, however, must be considered in connection with the facts appearing in the record. While the occasion inducing a dispersing of the jury from Thursday until Tuesday is not given, we may assume that the experienced and capable judge who presided at the trial had sufficient reason for his order; but the request of the jury, made when they returned to the court, to say nothing of the difficulty of keeping in mind the distinguishing features of the charge during their separation, indicated the necessity of having their memory refreshed in regard to the evidence as well as the law and, without such assistance, the uncertainty of rendering a just verdict. This conclusion is altogether reasonable in view of the fact that in the absence of the plaintiff’s counsel the defendant requested and obtained instructions which presumably were favorable to the defense. For these reasons the plaintiff is entitled to a new trial. New trial.