Appeal, No. 135, March T., 1962, from order of Court of Common Pleas of Washington County, May T., 1957, No. 187, in case of Mary Emma Wolfe v. Paul P. Riggle. Order reversed.
William A. Challener, Jr., with him Francis H. Patrono, for appellant.
William C. Porter, with him James L. O'Dea, and Melvin M. Belli, of the California Bar, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Did the court below abuse its discretion in granting a new trial?
On March 22, 1957, in the Court of Common Pleas of Washington County, Mary E. Wolfe instituted a malpractice action against Dr. Paul P. Riggle.*fn1 The matter was tried before Judge D. H. WEINER and a jury and, after a trial lasting well over a week, the jury returned a verdict in favor of Dr. Riggle and against Miss Wolfe.
Within less than twenty-four hours*fn2 after the verdict, Judge WEINER made an order granting a new trial
and assigning his reasons therefor.*fn3 This order was entered ex parte: no notice whatsoever was given either to the parties or their counsel and no motion for a new trial had been made on behalf of Miss Wolfe.
In Judge WEINER'S order he specifically set forth why he granted a new trial: (1) after rendition of the verdict four jurors told the court the verdict did not represent their true convictions, that they were led to believe they could not return a "compromise verdict" and wanted the court to call the jury back to reconsider the verdict; (2) W. C. Engle, a juror, failed to reveal to the court that, in a lawsuit pending on the same trial list, he was represented by Mr. Patrono, one of Miss Wolfe's counsel and the failure of both the juror and the attorney to reveal such fact to the court was improper and a breach of their duties to the court. At that time no other reason was assigned.
The first reason upon which the court relied is without merit. In Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 249, 171 A. 900, we said: "... we cannot accept the statement of jurors as to what transpired in the jury room as to the propriety or impropriety of a juror's conduct ... To do so, would destroy the security of all verdicts and go far toward weakening the efficacy of trial by jury ... Jurors cannot impeach their own verdict." (Emphasis supplied). See also: Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128; Commonwealth v. Newcomer, 183 Pa. Superior Ct. 432, 132 A.2d 731.
In Havranek v. Pittsburgh, 344 Pa. 375, 25 A.2d 703, where four jurors, after rendition of a verdict, expressed their dissatisfaction therewith, this court did not sanction the award of a new trial on that ground. Jurors must not be permitted to impeach their own
verdict. In this connection it may be noted that the better practice would have been for the trial court to have talked with the jurors only in the presence of counsel.
The second reason assigned for the award of the new trial was the failure of the juror Engle to reveal to the court - not to opposing counsel - his representation by Dr. Riggle's counsel in another lawsuit. Wherein failure to reveal this fact to the court constitutes improper conduct is not clear: concealment of such fact from opposing counsel, of course, would be improper. In evaluating this reason, certain factual background must be considered. On the trial at the same term of court there was listed a trespass action of one Emil Sposato v. W. C. Engle (the juror) et al. In that action both Mr. Porter and Mr. Patrono represented Engle:*fn4 thus, when Engle was selected, each counsel had full knowledge of the dual representation of Engle. Moreover, after the completion of the voir dire of the jurors*fn5 and prior to the exercise of any peremptory challenges, Mr. Porter and Mr. Patrono conferred and agreed that, perhaps, it would be better if Engle did not serve as a juror and asked the court, through a message to ...