Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1965, No. 59, in case of Wiley Bonds, Jr. v. The Ohio River Company.
Hymen Schlesinger, for appellant.
Anthony J. Polito, and Rose, Schmidt and Dixon, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Watkins, J., dissents.
[ 220 Pa. Super. Page 10]
This is an appeal by appellant Wiley Bonds, Jr., a seaman, from the denial of a new trial by the Common Pleas Court of Allegheny County. Appellant had instituted suit against appellee, The Ohio River Company, appellant's employer, alleging personal injuries sustained by appellant in a maritime accident on January 7, 1964. Appellant alleged negligence under the Jones Act (46 U.S.C.A. § 688) and for unseaworthiness under general maritime law. He also pleaded a claim for maintenance and care.
Jury trial was held on November 27, 1967. As molded by the court, there was a general verdict for appellee with an award of $24 for maintenance to appellant.
After this appeal was filed by appellant it was ascertained that no transcript of the trial was available,
[ 220 Pa. Super. Page 11]
the official court reporter having lost the notes of testimony.
Numerous trial errors are alleged by appellant but we are here concerned only with the lack of a trial transcript.
It has long been the law of this Commonwealth that stenographic notes of testimony must be taken "in any trial of fact, at law or in equity", and that in any case in which an appeal is taken to the Supreme or Superior Courts, the notes must be transcribed at public expense. Act of May 1, 1907, P. L. 135, §§ 3, 7, 17 P.S. §§ 1804, 1809. See Clift v. Philadelphia, 41 Pa. Superior Ct. 638 (1910).
In Mutual Loan and Savings Assn. of Chambersburg v. National Surety Co., 253 Pa. 351, 98 Atl. 600 (1916), a venire facias de novo was granted to prevent possible injustice where the transcript was available but not certified because of the stenographer's death. In National Corporation v. Brown, 186 Pa. Superior Ct. 46, 140 A.2d 469 (1958), the right to a new trial where transcript of the charge was missing was recognized by implication. There, we affirmed on the opinion of the trial judge, President Judge Bok, at 12 Pa. D. & C. 2d 45 (1957). The court had "delivered himself of a fairly splendid charge", inadvertently overlooking the absence of the court stenographer. When this was recognized, the court immediately offered to grant a new trial, which counsel rejected, stating that ...