The opinion of the court was delivered by: JOHNSON
This matter comes before the court on motion filed by the plaintiffs for a new trial, in which motion it was averred that the verdict rendered by the jury at the conclusion of the trial on June 13th, 1942, was not unanimous.
The pertinent facts to be considered are briefly as follows: On Friday, June 12, 1942, the jury in this case retired for consideration of the case after a full and complete trial. While the jury was out, the Court adjourned, and sometime during the night the jury apparently agreed and prepared a written verdict, which was sealed, to be presented when Court convened on Saturday.
The jury reassembled and in open Court presented its sealed verdict to the Court, which was opened and which was as follows:
"And Now, to wit: June 13th, 3:00 A.M., 1942 we, the jurors empaneled in the above entitled case, find Penn Hall Company negligent and that Ethel Mary Anderson was contributory in the negligence resulting in finding in favor of the Defendant. Charles B. Henderson, Foreman".
Upon request of counsel for the plaintiffs, the jury was polled, the clerk reading the sealed verdict aloud and asking each juror individually if that was his verdict. All of the jurors answered "Yes" at that time except two who answered "No". Upon being questioned by the Court, the Foreman of the jury stated several times that every juror had agreed to the written verdict before it was sealed and the jury separated. Juror Tyler, one of the jurors who answered "No", then stated as follows:
"I didn't agree to that writing in there, that indictment that we find -- we find the plaintiff guilty of negligence. I didn't vote on that".
Juror Tyler was then questioned by the Court as to what was his verdict at the time it was signed, and Juror Tyler thereupon answered that it had been, and still is, for the defendant.
The other juror who answered "No", Juror Thomas, was likewise questioned by the Court, and he also stated that his verdict at the time it was signed was for the defendant, and still is. Whereupon, the Court stated that the verdict was unanimous, and the same was recorded and the jury discharged.
Counsel for the plaintiff then made an objection to the reception of the verdict for the defendant and it is their objection that forms the basis for this Motion for a New Trial.
Counsel for the plaintiffs contend that a new trial should be granted on grounds that the verdict described above was not a unanimous one, as prescribed by law. That unanimity of all the jurors is absolutely necessary in order that a proper verdict be granted is well settled and need not be discussed.
The sole issue to be decided here is purely one of fact; namely, whether or not there was this required unanimity, and that can be decided only by a close scrutinization of all the facts and circumstances of this particular case.
The first thing to be noticed is the respective positions given by the law to the written sealed verdict and the oral verdict, delivered in open court. It is well settled that the only verdict is that which the jury announces orally in Court and which is received and recorded at the direction of the Court as the finding of the jury. See Rottmund v. Pennsylvania R. Co., 225 Pa. 410, 75 A. 341; also Commonwealth v. Flaherty, 25 Pa.Super. 490. Hence it follows that explanations or comments in a written verdict ...