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PITTSBURGH v. DINARDO (04/16/63)

April 16, 1963

PITTSBURGH
v.
DINARDO, APPELLANT.



Appeals, Nos. 22 and 23, March t., 1963, from order of Court of Common Pleas of Allegheny County, July T., 1958, No. 3008, and April T., 1958, No. 2570, in cases of City of Pittsburgh v. Thomas Dinardo, and Cyrus Cramer v. Same. Order affirmed.

COUNSEL

H. N. Rosenberg, with him Rosenberg & Rosenberg, for appellant.

Morris M. Berger, with him Daniel M. Berger, and Berger & Berger, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Per Curiam

[ 410 Pa. Page 377]

OPINION PER CURIAM

A Pittsburgh police car, operated by Patrolman Cyrus Cramer, came into collision with an automobile owned by Dominick Dinardo and operated by his son Thomas Dinardo. Cramer brought an action of trespass against Thomas Dinardo for personal injuries; the City of Pittsburgh sued Thomas Dinardo for damages sustained to its vehicle; Dominick Dinardo sued Cyrus Cramer in one action and the City of Pittsburgh in another action for his property damage.

The four cases were consolidated for trial. The jury in open court orally announced in Case No. 1 that both drivers were negligent. In Case No. 2, the jury returned a verdict in favor of the defendant Dinardo. In announcing its verdict in Case No. 3, confusion developed. No. 1 juror said they found in favor of Dinardo. No. 5 juror volunteered: "It can't be," whereupon No. 1 juror said: "I am sorry. I probably answered that improperly," and then added: "There is no fault found." After interrogation by the court, juror No. 1 changed from "no fault found" to "We found negligence on the part of them." In Case No. 4, juror No. 1 announced "Negligence on both parts." Since the owner Dinardo was not present at the accident and was not involved tortiously, the question would arise

[ 410 Pa. Page 378]

    as to whether, in view of Cramer's declared negligence, owner Dinardo would not be entitled to a monetary verdict for his property damage.

The trial court instructed the jury to return for further deliberation. On the way from the courtroom to the jury room, juror No. 1 had a seizure of some kind and was unconscious for about fifteen minutes. The court, then, on its own motion, declared a mistrial. The defendant Dinardo appealed seeking a reinstatement of the verdicts arguing that the trial court was without power to declare a mistrial, once the verdicts had been recorded.

We cannot say, in view of the extraordinary situation which developed when the jurors were reporting their verdicts, that the point of no return, as to unalterability of verdict, had been reached.

In the case of Eastley v. Glenn, 313 Pa. 130, the jurors, coming to the end of their deliberations of a late Friday afternoon, sealed their verdict and returned to their respective homes. On the following Monday morning, they handed their verdict to the trial judge who read it, and handed it to the clerk who stated in the usual form: "Members of the jury, hearken to your verdict as the court has recorded it; in this issue joined ...


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