Before HASTINGS, Chief Judge, SCHNACKENBERG, Circuit Judge, and MERCER, District Judge.
Plaintiff, while visiting friends at a resort operated by defendant, was seriously and tragically injured when he dived from a pier, maintained in conjunction with defendant's beach, into approximately two and one-half feet of water. He now appeals from an adverse judgment entered by the court below on the jury's verdict finding the issues in defendant's favor in his action for damages for injuries.
Plaintiff asserts as error certain rulings by the court on the admission and exclusion of evidence, on instructions to the jury, permitting the jury to separate during the deliberation on their verdict and in the order of the court denying his motion to amend his complaint which was filed after the verdict. We will consider the last two contentions of error first because if those two contentions are meritorious and would require a reversal of the judgment below, it would be unwise for us to comment extensively upon the evidence which undoubtedly we must do if we consider other errors asserted by plaintiff. Glasser v. United States, 315 U.S. 60, 67, 62 S. Ct. 457, 86 L. Ed. 680.
The case was submitted to the jury at approximately 4:30 p. m. on July 14, 1958. After submission of the case to the jury plaintiff's counsel advised the court that he was going to Chicago, but that he could be in court, if needed, within 30 minutes after notice. He left an address and phone number with an official of the court where he could be reached while in Chicago. The jury deliberated until about 4:00 a. m. on July 15th, at which time the trial judge told the jurors to go home, get some rest and come back at 1:00 p. m. of the same day to continue their deliberations. The judge admonished the jury not to talk to anyone about the case while they were separated and not to resume their deliberations until the whole jury had reassembled on the following afternoon. At 1:00 p. m. on July 15, 1958 the jury resumed its deliberations and at about 5:25 the same afternoon rendered its verdict in favor of defendant. While he was still in Chicago, on the morning of the 15th, plaintiff's counsel called Judge Swygert's law clerk at Hammond and was then advised that the jury had been sent home and permitted to separate, but would return at 1:00 p. m. on that day to resume their deliberations. Following that telephone conversation counsel left Chicago and went to Peoria, Illinois.
Plaintiff made no objection to the jury's separation or to its resumption of deliberation after separation. In fact, nothing was done until after the adverse verdict had been returned and received when plaintiff's counsel then moved to supplement the record with testimony of the Judge and the United States Marshal and other court officials as to the facts surrounding the dispersal of the jury at 4:00 a. m. on July 15.
Plaintiff now contends that the action of the trial judge in permitting the jury to separate and then return and resume deliberation, is a violation of the guarantee of trial by jury contained in the Seventh Amendment to the Constitution of the United States. That contention is not well taken. In Galloway v. United States, 319 U.S. 372, 388-396, 63 S. Ct. 1077, 87 L. Ed. 1458, the Court discussed at length the meaning of the Seventh Amendment guarantee of the right of trial by jury as it existed at common law. There it is said that the Seventh Amendment guarantees only the basic concept of trial by jury, not that trial by jury shall forevermore follow common law modes which were themselves constantly changing, and which varied from state to state, and between jurisdictions within the United States and England, at the time of the adoption of the Bill of Rights to the Constitution. The recent case of Byrne v. Matczak, 3 Cir., 254 F.2d 525, is pertinent and is factually similar to the case at bar. The case, a wrongful death action, was submitted to the jury at 3:56 p. m. At 10:35 p. m. the jury announced that it had not agreed on a verdict. After admonishing the jury to discuss the case with no one, the trial judge dismissed the jurors for the night. The next morning when the jurors returned, deliberation was resumed. The verdict was returned at 5:11 p. m. on that day. The appellant argued that the procedure was improper and was a denial of the right to trial by jury as guaranteed by the Seventh Amendment. In rejecting those contentions of error, the court said that two points controlled the question of propriety of permitting dispersal:
"First, that the decision whether to allow dispersal is primarily a matter requiring an exercise of discretion of the district judge, and, second, that reversal is proper only when the judge has acted arbitrarily, or when prejudice is shown to have resulted from the dispersal." 254 F.2d at page 528.
On the question whether dispersal of the jury during deliberation was a violation of rights guaranteed by the Seventh Amendment, the court reviewed several cases, including Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 51 S. Ct. 513, 75 L. Ed. 1188; Ex parte Peterson, 253 U.S. 300, 40 S. Ct. 543, 64 L. Ed. 919, and Galloway v. United States, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458, and concluded "that the constitutional conception of jury trial is not inflexible in all details, so long as the essential elements of the institution are preserved. * * * In this view, fair new procedures, which tend to facilitate proper fact finding, are allowable, although not traditional." 254 F.2d at pages 528-529.
The control of the jury, and the question whether to allow a jury to separate, while deliberating and reconvene after separation to resume deliberation, is a matter within the sound discretion of the trial court. Byrne v. Matczak, 3 Cir., 254 F.2d 525, certiorari denied 358 U.S. 816, 79 S. Ct. 24, 3 L. Ed. 2d 58; Franklin v. Shelton, 10 Cir., 250 F.2d 92, 99, certiorari denied 355 U.S. 959, 78 S. Ct. 544, 2 L. Ed. 2d 533; Bratcher v. United States, 4 Cir., 149 F.2d 742, certiorari denied 325 U.S. 885, 65 S. Ct. 1580, 89 L. Ed. 2000. The trial judge is in a better position than are we to appraise the intangibles determinative of the question whether separation ought to be allowed. He is in position to make an informed guess whether a jury is hopelessly deadlocked, or whether further deliberation is likely to be fruitful and avoid a retrial of a prolonged case. He is also in the position to determine whether deliberation has continued for such a length of time and to such extent that weariness of the jurors is likely to preclude impartial and fruitful deliberation if deliberation is continued without pause. Cf. Byrne v. Matczak, supra, 254 F.2d at page 529. Absent proof that the judge has acted arbitrarily, or proof that plaintiff was in fact prejudiced by the separation and reconvening of the jury, the fact of separation can never be a ground for reversal of a judgment. No arbitrariness or prejudice is shown here.
Moreover, the question was not preserved by plaintiff for review. Plaintiff's counsel absented himself from the premises of the court while the jury was deliberating. While court officials were advised where counsel could be reached, and were advised that upon notice counsel could be in court within 30 minutes, nevertheless, it is illogical to assume that a district court must give notice to counsel and then wait 30 minutes for the parties to appear in court before routine communications are had with the deliberating jury. The determination to allow dispersal was made in open court and the judge could properly assume counsel had elected not to be present. Prior to resumption of deliberation, plaintiff's counsel had knowledge that the jury had been dispersed and that the jury was returning later on the same day to resume deliberation in this case. No objection was then made to the dispersal, or to the resumption of deliberation. Instead, counsel took his chances, went on about his business and raised his voice in protest against the procedure for the first time after the verdict was in and the issues had been determined adversely to his client. Under those circumstances, plaintiff is not in position now to complain. Franklin v. Shelton, 10 Cir., 250 F.2d 92, certiorari denied 355 U.S. 959, 78 S. Ct. 544, 2 L. Ed. 2d 533; Byrne v. Matczak, 3 Cir., 254 F.2d 525, 528, certiorari denied 358 U.S. 816, 79 S. Ct. 24, 3 L. Ed. 2d 58; Cf., Maloney v. Brandt, 7 Cir., 123 F.2d 779, 782; McComb v. Goldblatt Bros., 7 Cir., 166 F.2d 387, 389-390. In the latter case we held that an appellant could not raise in this court contentions of error against procedures followed by the district court in determining whether an injunction should be issued because he had failed to object to the procedures adopted and had acquiesced in the lower court's action. The principle we announced there is equally applicable to the case at bar. No timely objection was made which would have permitted the trial judge to consider the question of the propriety of his action in permitting the jury to separate. For that reason, also, the judgment is not assailable on the ground that the court permitted dispersal of the jury.
The next contention which we must consider is the contention that the trial court erred in denying plaintiff's motion to amend his complaint after verdict. The complaint sounded on negligence. The case was tried, submitted to the jury, and, by the jury considered on the theory of negligence. After the verdict, plaintiff filed a motion, assertedly on authority of Fed.R.Civ.Proc. 15(b), 28 U.S.C.A., to amend his complaint to allege that defendant had been guilty of wilful and wanton misconduct. That motion was denied.
We think it indisputable that the action of the trial judge in denying the motion to amend is unassailable. If Rule 15(b) were applied in the manner in which it is here sought to be used, litigation might never end. We think it obvious that the Rule was not intended to permit a party to amend his pleadings after verdict and, thereby upset the verdict by asserting a new theory which was not included in the original pleadings, and upon which the case was not tried.
We have previously approved the principle that Rule 15(b) cannot be used in the above fashion. Apex Smelting Co. v. Burns, 7 Cir., 175 F.2d 978, 981. We there quoted and approved the following language from ...