I cannot concur in the application to the facts in this case of the proposition of law set forth in the majority opinion and more succinctly stated in the syllabus. The instruction excepted to contains no clause directly urging upon the jury the propriety of the minority yielding under certain circumstances to the majority; and whatever implication in that regard its language may carry is counterbalanced by another implication as to the weight which should be given to the reasoning of the minority. The trial judge expressed no concern as to which side should yield. The burden of his instruction, as set forth in its climax, was an appeal to the jurors to conclude the case.
Within the limitations herein set forth it is not only within the province but it is the duty of the trial judge to seek to avoid a mistrial. The rule is thus stated in Abbott's Civil Trial Brief, 4th Ed., p. 798: "The judge must not coerce the jury into agreement upon a verdict by intimidation or threats to subject them to any unreasonable inconvenience, yet he may and ought to urge upon the jury all proper motives to induce them to agree upon a verdict, such as the propriety of a spirit of legal concession in their deliberations, and the importance to the parties and the public of a verdict and the saving of time and expense of a new trial."
In the instant case the instruction contains no threat, shows no attempted intimidation, neither withdraws nor modifies any former instruction as to the rules to be applied to the determination of the facts in the case, and directly charges against the coercive use of superior numbers *Page 176 to bring about a verdict for either party. No improper motives have been urged to induce agreement. There is nothing in the record to show that the instruction operated prejudicially to the legal rights of the defendant.
In my opinion the exception should be overruled and the judgment affirmed.