Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1964, No. 2850, in case of Walter S. Yarsunas v. John Boros.
William J. Lancaster, with him Charles J. Duffy, Jr., for appellant.
Fred W. Dunton, with him Stein and Winters, for appellee.
Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Musmanno join in this dissenting opinion.
This is a personal injury action arising out of an automobile accident in which the plaintiff was seriously injured. The issue came on for trial, and the jury returned a verdict for the plaintiff in the sum of $11,300. The lower court granted plaintiff's motion for a new trial. The defendant appeals.
In the court below, the plaintiff seeking a new trial strenuously argued that the verdict was totally inadequate in view of the injuries suffered. The court overruled this contention and expressed the view, that the evidence as to the extent of the injuries caused by the accident was in serious dispute, and the jury could properly have concluded that the plaintiff was not as seriously injured in the accident as he complained. However, in view of our recent decision in Gould v. Argiro, 422 Pa. 433, 220 A.2d 654 (1966), it felt compelled to grant a new trial solely because of the following occurrence during the proceedings.
After the charge of the court and during the jury's deliberations, the jurors sent to the trial judge, through a court attendant, a written memorandum containing the following questions: "Are these attorneys from Insurance Co's or are they personal Attorneys? If these are personal contingency lawyers should we take attorney's fee into consideration?"*fn1
The trial judge did not notify counsel for the parties involved of the jury's inquiry,*fn2 but proceeded, in the absence of counsel, to answer the questions on the same sheet of paper (which was sent back to the jury) in the following manner: "Mr. Dunton and Mr. Lancaster represented their clients, and you are to consider only those matters that I discussed in my charge to you."
Subsequently, the jury returned its verdict, following which the trial court informed counsel, for the first time, of the jury's inquiry during its deliberations and directed that the memorandum containing the questions and answer be made part of the record.
In Gould v. Argiro, supra, we ruled that any instruction by the trial judge to the jury in the absence of counsel requires the grant of a new trial regardless of prejudice. In Kersey Manufacturing Co. v. Rozic, 422 Pa. 564, 222 A.2d 713 (1966), while the communication between the trial judge and the jury in the absence of counsel was admittedly innocuous and well intended, we reaffirmed the ruling in Gould, supra, and Mr. Justice Jones speaking for the Court pointedly said at 569: "The practice of trial judges in communicating with the jury or instructing the jury in any manner whatsoever, other than in open court and in the presence of counsel for all parties, must be terminated." Kersey, supra, clearly controls the present case and mandates our affirmance of the retrial order.
The inherent possible harm of permitting trial courts to communicate with jurors during their deliberations in the absence of counsel is so readily manifest that discussion thereof is unnecessary. Further, such a practice is repugnant to our long established trial procedure. See, Hunsicker v. ...