While I concur in the result reached that permitting the jury to take the pleadings on their retirement was not on the record prejudicial, yet I do not fully concur in all that is said in the prevailing opinion respecting the question. I think the correct rule is stated in the case of Jensen v. Utah Ry. Co., 72 Utah 366,270 P. 349, referred to in the prevailing opinion, and followed and approved in the case of Clark v. Los Angeles Salt Lake R. Co., 73 Utah 486, 275 P. 582.
The rule there stated is that a judgment will not be reversed for errors or defects which do not affect a substantial right; that the burden is on the appellant to show, not only error, but prejudicial effect as well; that all committed errors are not presumtively or prima facie prejudicial; but when found error is of such nature or character as calculated to do harm or on its face as having the natural tendency to do so, prejudice will be presumed, until by the record it is affirmatively shown that the error was not or could not have been of harmful effect; and, where the appellant shows error of such nature or character, he, in the first instance, has made a prima facie showing of prejudice, until by the record it is shown that the error was not or could not have been of harmful effect.
We all are agreed that error was committed in permitting the jury on their retirement to take the pleadings in the cause. This court so held in the Pulos Case cited in the prevailing opinion. Such is the general holding of the courts. Such found error is calculated to do harm, and on its face has the natural tendency to produce harmful effect. Pleadings are for the court, not for the jury. It is the duty of the court to determine the issues and to state them to the jury without referring to or permitting the jury to take the pleadings. As stated by the author, 1 Brickwood's Sackett on Instructions, 169: *Page 37
"Pleadings are drawn in technical language and contain matter which may have been withdrawn, and sometimes have matter pregnant with denunciations and adjectives that might sway or influence the jury. It is not always easy for the court itself to understand the pleadings and certainly it would be too much to expect that the jury would not misunderstand them."
When pleadings are permitted to be taken by the jury, it is not practicable, if not incompetent, to show what use was made or effect given them, or what influence they had on the verdict. Since the committed error permitting the jury to take the pleadings was calculated to do harm, I think prejudice should be presumed, until by the record it was shown no such effect resulted. If by the record such presumption was not dissipated or overcome, the judgment, because of the committed error, should be reversed and the case remanded. If, however, the presumption was overcome, and if on the record the court is satisfied no prejudice of a substantial right resulted, the judgment should not be reversed on ground of the error.
The question thus is how or in what manner, on the record, if at all, was here the presumptive effect of prejudice overcome. The pleadings themselves were not voluminous nor complex. They were stated in ordinary and concise language, free from redundant or exuberant matter and from anything calculated to stimulate unnatural action. The court by its charge to the jury fully covered all the issues presented by the pleadings, and in such particular fairly stated the respective contentions of the parties. All of substance in the pleadings was stated in the charge. The jury by examining or reading the pleadings could not get anything more from them than was stated in the charge. Under such circumstance there is good authority that, while it was error to let the jury take the pleadings, yet no prejudicial effect resulted therefrom. 11 Encyc. Pl. Pr. 157; 2 Thompson on Trials (2d Ed.) § 2314; Drake v. C., R.I. P. Ry. Co.,70 Iowa 59, 29 N.W. 804; Morrison v. B., C.R. N. Ry. Co.,84 Iowa 663, 51 N.W. 75; Kamm Co. v. W.E. Sloan Co., *Page 38 72 Kan. 459, 83 P. 1103. I am in accord with that, and for such reason I am of the opinion that the presumptive or prima facie effect of prejudice arising from the committed error was by the record dissipated. Had that not been the condition of the record. I think a different result should be reached. Keatley v. I.C.Ry. Co., 94 Iowa 685, 63 N.W. 560.