Gould v. Argiro

220 A.2d 654, 422 Pa. 433, 1966 Pa. LEXIS 573

• Court: Supreme Court of Pennsylvania
• Decided: June 24, 1966
• Docket: Appeals, 123 and 124
• Status: Published

Opinions

Opinion by

Mr. Justice Cohen,

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 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 the jury room or privately communicate with the jury under any circumstances. . . (Emphasis supplied). Glendenning v. Sprowls, supra at 224.

The error here committed, therefore, requires a new trial regardless of prejudice.

There is another reason why this case must be remanded for a new trial. The additional instructions must be made a part of the record. That was not properly done here. The facts disclose that the written response of the trial judge was not preserved. Neither were the questions and responses immediately made a part of the record. As was also said in Glendenning v. Sprowls, supra at 226, “We cannot safely leave . . . the language of a Judge’s private communication to the memory or to the subsequent recollection or interpretation of the trial Judge and possibly different recollection or interpretation thereof by jurors.”

In the case of Sommer v. Huber, supra, the trial judge received from the jury requests for instructions, to which he returned written answers. Defendants were not present and were not advised of the occurrence until the verdict was rendered and the jury was discharged. The -communications between the judge and the jury were not preserved. In awarding a new trial this Court said at page 167: “It is important that the litigants should know what instructions affecting the issues between them were given to the jury in their absence. For them to know that instructions had been privately communicated to the jury, and to be unable to ascertain what they were, is quite likely to create a suspicion of unfairness and to impair their confidence in the court. An erroneous instruction given to the jury in open court, and in the presence of the parties and their counsel, is not so objectionable as the secret instruction of which there is no record, and the nature and effect of which cannot be definitely ascertained. The former may be intelligently reviewed While the latter cannot be. The verdict, however, may' be set aside, or the judgment entered upon it may be reversed on the ground of an unwarranted departure from the rule which condemns secret instructions to the jury in relation to questions raised by the pleadings or the evidence, as opposed to the proper administration of justice.”

Our decision in this matter makes unnecessary any discussion of the propriety of the manner in which appellants chose to object to certain language in appellee’s summation.

' Judgments reversed and case remanded for a new trial.