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ARGO v. GOODSTEIN (03/14/67)

decided: March 14, 1967.

ARGO
v.
GOODSTEIN, APPELLANT. ARGO V. GOOD COMPANY, INC., APPELLANT



Appeals from judgments of Court of Common Pleas of Delaware County, March T., 1962, No. 1621, and June T., 1962, No. 1007, in cases of James Argo v. Sidney Goodstein; and Same v. Good Company, Inc.

COUNSEL

Robert B. Surrick, with him Cramp and D'Iorio, for appellants.

Garland D. Cherry, with him Kassab, Cherry, Curran & Archbold, for appellee.

William Taylor, Jr., for amicus curiae.

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

Author: Cohen

[ 424 Pa. Page 614]

This is a trespass action in which appellee, a blind man, seeks to recover damages for injuries sustained as a result of a fall. We heard argument on this matter, but allowed reargument because we had failed to consider at length a question which has been a determining factor in three recent decisions of this Court. That question is whether a new trial should be granted because of a secret communication between judge and jury without the presence of counsel.

The instant jury retired for deliberations at 10:37 a.m. on May 19, 1964. After breaking for lunch, the jury at 2:00 p.m. sent the following note to the trial judge: "Judge Catania: We have made a verdict and we would like to know if the same figure goes on both verdict papers or do we split the amount?" The trial judge replied in the following writing: "If you find Defendant 'A' negligent then you have a duty of fixing the extent of 'A's' liability. If you find Defendant 'B' also negligent then you must fix the damages to which the Plaintiff is entitled from Defendant 'B'". At the very time that this communication occurred counsel for appellants was present in the trial judge's courtroom engaged in the trial of a different case. Yet the judge made no effort to inform counsel of the transfer of notes.

Counsel first learned of the secret instruction when the following occurred after the jurors filed into the courtroom with their verdict: "(At 3:07 P.M. the Jury

[ 424 Pa. Page 615]

    returned to the Court Room.) The Court: May I have the note that I sent back out to you. Maybe it would be a good idea if the Jury went back and picked up the note and came back in again. And we will wait until you do. (The Jury retires from the Court Room at 3:09 P.M.) (The Jury returns to the Court Room at 3:10 P.M.) The Court: All right. May I have the note. I would like to make this part of the record. At 2:00 P.M. the Jury sent out the following note addressed to me. 'Judge Catania: We have made a verdict and we would like to know if the same figure goes on both verdict papers or do we split the amount?' And the answer I sent back: 'If you find Defendant "A" negligent then you have a duty of fixing the extent of "A's" liability. If you find Defendant "B" also negligent then you must fix the damages to which the Plaintiff is entitled from Defendant "B".' Then I signed it. All right, will you take the verdict. The Clerk: Members of the Jury, have you agreed upon a verdict? The Forelady: We have. The Clerk: What is your verdict?" The forelady immediately read the verdict and the jury was dismissed. Thereafter, counsel for appellants cited the secret instruction as error in appellants' motion for new trial.

The law in this Commonwealth is clear. Any intercourse between the trial judge and deliberating jury, no matter how innocuous, had in the absence of counsel mandates the grant of a new trial even in the absence of prejudice to either party. Yarsunas v. Boros, 423 Pa. 364, 223 A.2d 696 (1966); Kersey Manufacturing Co. v. Rozic, 422 Pa. 564, 222 A.2d 713 (1966); Gould v. Argiro, 422 Pa. 433, 220 A.2d 654 (1966). It is by no means a novel concept that after the jury have retired to deliberate on their verdict any communication between them and the trial judge in the absence of counsel for the parties is reversible error. This was the holding of Bunn v. Croul, 10 Johns. R. 239 (N.Y.

[ 424 Pa. Page 6161813]

), and Sargent v. Roberts, 1 Pick. 337 (Mass. 1823). Indeed, our own Court recognized this principle in Sommer v. Huber, 183 Pa. 162, 38 Atl. 595 (1897), wherein a new trial was awarded because the trial judge returned a written answer to the jury's request for instructions without the presence of counsel.

As we indicated in Yarsunas, Kersey, and Gould, the rule enunciated by us is and must be prophylactic. The unsavory overtones of clandestine instructions from judge to jury are so obviously unfair to judges, lawyers and litigants that no other approach than an absolute prohibition is warranted. To approach this problem on an ad hoc basis, as some members of this Court have advocated, is to expose the judicial system to baseless speculation by the general public as to the honesty and integrity of its members. I can cite no more appropriate language than the words of Chief Justice Bell, speaking for a unanimous Court in Glendenning v. Sprowls, 405 Pa. 222, 174 A.2d 865 (1961), to the effect that: "It has been wisely stated that 'next to the tribunal being in fact impartial is the importance of its appearing so': Shrager v. Basil Dighton Ltd., (1924) 1 K.B. 274, 284. This applies in a special way to the Judge and his relationship with the jury. Without doubting the worthy motives or the well-intentioned solicitude of the Judge for the wishes and welfare of the jurors, private communication by a Judge to or with the jury in the jury room and in the absence of counsel is almost certain to create suspicions and a belief of unfairness in the minds of many people. It opens wide the door to possible fraud and to unintentional or possibly intentional influence of a jury and thus impairs confidence in the Court: Sommer v. Huber, 183 Pa. 162, 167 (1897), 38 A. 595." (405 Pa. 224, 174 A.2d 866.) At the conclusion of his opinion in Glendenning, the Chief Justice stated: "We cannot safely

[ 424 Pa. Page 617]

    leave a Judge's intrusion into a jury room to a consideration of his motives, or the language of a Judge's private communication to the memory or to the subsequent recollection or interpretation of the trial Judge and a possibly different recollection or interpretation thereof by jurors. We strongly condemn any intrusion by a Judge into the jury room during the jury's deliberations, or any communication by a Judge with the jury without prior notice to counsel, and such practice must be immediately stopped!" (Emphasis supplied). (405 Pa. 226, 174 A.2d 867.)

In effect, Glendenning sets forth a prophylactic rule with reference to " any communication by a Judge with the jury without prior notice to counsel," with special reference to intrusion into the jury room. The majority of this Court can see no reason that the prophylactic rule established in Glendenning should not be applied to the situation now before us. Accordingly, we applied that rule in Yarsunas, Kersey, and Gould, and we apply it again in the instant case.

Judgments reversed and new trial granted.

Disposition

Judgments reversed and new trial granted.

[EDIT ] Dissenting Opinion Mr. Chief Justice Bell:

I dissent.

Statements by a Judge to a jury in the absence of counsel, and in answer to a jury's request, do not constitute reversible error or justify a new trial, unless the communication from the Judge amounted to an instruction to the jury, as that term has always been used and understood, and constituted prejudice to one or both of the parties. Yarsunas v. Boros, 423 Pa. 364, 223 A.2d 696 (Dissenting Opinion); Kersey Manufacturing Company v. Rozic, 422 Pa. 564, 222 A.2d 713 (Dissenting Opinion); Gould v. Argiro, 422 Pa. 433, 220 A.2d 654 (Dissenting Opinion).

In this particular case, the Court merely replied to the question of the jury as to whether or not their

[ 424 Pa. Page 618]

    verdict figure was to be placed on both verdict papers or to be split individually. To this the trial Judge replied: "If you find Defendant 'A' negligent then you have a duty of fixing the extent of 'A's' liability. If you find Defendant 'B' also negligent then you must fix the damages to which the Plaintiff is entitled from Defendant 'B'". Clearly, this answer was so innocuous, and non-prejudicial, so as not to justify a new trial and thereby substantially increase litigation, which we are constantly striving to reduce.

The majority's reliance upon my Opinion in Glendenning v. Sprowls, 405 Pa. 222, is clearly inapposite. In every case a Judge's opinion must be considered in the light of and in the connection of the facts of that particular case. So considered, my Opinion in Glendenning is, I repeat, clearly inapposite, distinguishable and inapplicable. That was a case in which the Judge's actions could not possibly be justified, and prejudice might easily have resulted and have influenced the jury's verdict. In Glendenning, the Judge visited the jury room no less than six times and allowed a juror to leave the jury room in the company of the Judge to telephone the juror's allegedly jealous wife. However, the facts in that case are so dissimilar from the situation in the case at bar so as to compel a different result. For just as Mr. Argo must proceed through life blindly, so has the majority blinded justice by the order of a new trial.

[EDIT ] Dissenting Opinion by Mr. Justice Musmanno:

Making a mountain out of a molehill, an ocean out of a rain puddle, and a prairie out of a blade of grass would be an easy task compared to what the Majority is ...


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