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GOULD v. ARGIRO. ARGIRO V. PHILLIPS OIL COMPANY (06/24/66)

decided: June 24, 1966.

GOULD, APPELLANT,
v.
ARGIRO. ARGIRO V. PHILLIPS OIL COMPANY, APPELLANT



Appeals from judgments of Court of Common Pleas of Westmoreland County, Oct. T., 1963, Nos. 490 and 539, in cases of William H. Gould and Verana Gould, his wife v. Joseph Argiro; and Joseph Argiro v. Phillips Oil Company, William Gould and Verana Gould, his wife, et al.

COUNSEL

Avra N. Pershing, Jr., for plaintiff in case No. 490.

John N. Scales, with him Henry E. Shaw, and Scales and Shaw, for defendants in case No. 539.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Musmanno.

Author: Cohen

[ 422 Pa. Page 434]

As a result of an accident involving appellants' truck and appellee's automobile cross-suits were instituted. The suits were consolidated for trial and the jury found in favor of appellee in both actions.

The opinion of the lower court recites that, after it retired to deliberate, the jury sent two requests for further instructions to the trial judge. The questions were: 1. "Since this was a dual transmission truck, what gear was it in as it approached the top of the hill?" 2. "What is the top union wage for welders?"

To each of these questions the judge indicated that he gave the following answer: "You must remember the testimony as given by the witnesses on the witness stand."

The lower court's opinion further discloses that at the time the questions were posed and answered neither counsel was present. Apparently, the trial judge made no effort to contact counsel before responding to the jury's interrogatories. Although the responses were in writing, they were transmitted through a tipstaff and were not preserved. Neither the questions nor the answers appear in the official record. The questions and replies, therefore, were recorded only in the trial judge's recollection.

The potential impediments to a fair proceeding inherent in these practices necessitates the grant of a new trial.

While the jury is deliberating, counsel must hold himself available to the court. Corresponding to the

[ 422 Pa. Page 435]

    duty of counsel is that of the trial judge to have no intercourse with the jury in the absence of counsel. Thus, the court may have the suggestions of both counsel in preparing its additional charge, and prompt objection to the charge as given may be made. We have said this many times. Glendenning v. Sprowls, 405 Pa. 222, 174 A.2d 865 (1961); Hunsicker v. Waidelich, 302 Pa. 224, 153 Atl. 335 (1931); Sommer v. Huber, 183 Pa. 162, 38 Atl. 595 (1897).

Although we have in the past held that to warrant a new trial prejudice must arise from the trial court's instruction in the absence of counsel, Sebastianelli v. Prudential Insurance Company of America, 337 Pa. 466, 12 A.2d 113 (1940), we have more recently said: "In many cases no one can say with certainty that a litigant's case has or has not been adversely affected by an intrusion of a Judge into the secrecy of the jury room, even though the intrusion was worthily motivated. This Court has, on prior occasions, warned trial Judges that they are not to enter ...


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