Fortney v. Stephan , 239 Mich. 499 ( 1927 )

Plaintiff asks for a rehearing. We do not feel that a rehearing should be granted. One assignment of error, however, was not covered in the opinion (237 Mich. 603), but has been considered and will now be decided. At the trial certain articles in newspapers were received in evidence. In one newspaper an article, claimed to be prejudicial to plaintiff, was not in evidence. In the absence of counsel for plaintiff the jury requested the exhibits and the court, without deleting the article not in evidence, sent the newspapers to the jury. In this the court was in error, but we cannot say, upon an examination of the entire case, it affirmatively appears that the error resulted in a miscarriage of justice. We may not consider the affidavit of a juror. Plaintiff should have severed the articles in evidence from the other newspaper contents and thereby saved the court from falling into the error.

Rehearing denied, without costs.