The opinion
MORGAN, Judge
(dissenting).
Acceptance by a jury of the task of deciding disputed issues of fact, and blending such findings into the law as given to it by the trial judge in his instructions, has provided the foundation upon which our system of jurisprudence rests. Absent knowledge to the contrary, the system de *577 mands unbending faith that each of the twelve lay members of the jury fully understands such instructions and comprehends the theories, both of recovery and defense, declared therein. However, the facts of this case present a very fundamental challenge, i. e., what are the alternatives when a jury, presumably in good faith and with dedication to its task, admits its confusion and inability to understand the law announced by the trial judge? There can be only two choices: (1) allow the trial judge to do nothing and, as suggested by the majority opinion, advise “that they should go back and read them [instructions] again,” or (2) allow the trial judge to accept the truth and attempt to eliminate the confusion. Of the two possibilities, I prefer the latter.
It is not the purpose of this dissent to belittle the merits of the alternative chosen in the majority opinion, but its inherent weakness is evident in the fact that such alternative refuses to attempt to solve a difficult problem. The jury, after admitting its confusion, is returned to the jury room to prepare a verdict regardless and it is then to be embraced as intelligently made. Admittedly, there is some slight possibility the jury may resolve its confusion without assistance, but I am convinced the possibility is much greater if the trial judge is given the privilege of attempting to remove the confusion. A verdict under the latter approach certainly can be accepted with a greater feeling of confidence.
Instructions can have only two purposes: (1) to properly instruct the jury as to the applicable law, and (2) to meet the demands of the law as construed by appellate courts. Unless they meet the requirements of the first, the second is rather an academic adventure.
Neither do I believe the second alternative is a threat to the “pattern form of instructions” as inferred in the majority opinion. Their great value to the profession is recognized by all, and particularly by the trial judge who must resolve instruction questions in the hurried atmosphere of the courtroom. He would be the last to do anything damaging to the system. In fact, the M.A.I. Committee in its “How To Use This Book” instructions, page LIII, described the trial judge as “the most important man in our judicial system.” This truth is much more consistent with the second alternative available. If, after careful consideration, the trial judge believes he can fairly remove the admitted confusion by answering the question posed, he should be allowed to do so. To rule otherwise, fails to use the judicial experience of over one hundred trial judges in solving a difficult problem.
In addition, I find nothing prejudicial in the answer given by the trial judge in this case and believe it an excellent example of how trial judges can alleviate the problem when it arises. Under the circumstances, an effort to explain “why” would be to no avail if such an effort can not be made in the first place.
I respectfully dissent.
BARDGETT, J., concurs.