Yarsunas v. Boros

223 A.2d 696, 423 Pa. 364, 1966 Pa. LEXIS 480

• Court: Supreme Court of Pennsylvania
• Decided: November 15, 1966
• Docket: Appeal, 248
• Status: Published

Opinions

Opinion by

Me. Justice Eagen,

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 plaintiffs 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?” ¹

The trial judge did not notify counsel for the parties involved of the jury’s inquiry,² but proceeded, in the absence of counsel, to answer the questions on the same sheet of paper (which was sent bach 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. Waidelich, 302 Pa. 224, 153 A. 335 (1931), and Sommer v. Huber, 183 Pa. 162, 38 A. 595 (1897). It is argued that each case should be decided on an ad hoc basis, and that in the absence of a showing of actual prejudice, an inadvertence by the trial court in privately communicating with the jury should be overlooked as harmless error. Such a rule would surely lead to confusion and inconsistent results. Further, past experience dictates that guidelines for trial judges, in this respect, be fixed and clear in order that all possible prejudice to litigants’ causes be completely eliminated.

Appellant also argues, that since plaintiff’s counsel failed to complain of the trial court’s action until the motion for a new trial was filed, the objection thereto was untimely. As noted before, counsel was not informed of the incident involved until after the verdict was recorded. The opportunity to object at the time the complained of incident occurred was therefore denied, and under the circumstances the question was properly and timely raised in the motion for a new trial.

Order affirmed.

1 The following incident during the trial probably stimulated this illogical and irrelevant approach by the jury to the issues involved: In cross-examining the defendant’s physician witness, plaintiff's counsel attempted to elicit facts manifesting his conclusions were inaccurate and based upon inadequate information. The witness unresponsively and gratuitously stated: “I am sure, Mr. Dun-ton, that you are very familiar with my work. I do quite a bit of work for your outfit of Stein & Winters.”

2 There is nothing in the record to suggest that they were not available.