O'DONNELL v. Bachelor

*509 Dissenting Opinion by

Me. Justice Robebts:

Even “an understandable desire to satisfy a yearning for pizza” should not be enough to sustain the grant of a new trial where the record conclusively demonstrates that none is necessary. In my view such a demonstration so vividly exists that I would have no difficulty whatsoever affirming the court below.

I agree with the majority that the testimony of Rock was perhaps the single most significant factor contributing to the jury’s verdict. However, this does not mean that his affiliation with appellee’s insurance company should have been made known to the jury when that same jury had been told throughout the trial, not only by appellant’s counsel, but also by Rock and the trial judge himself, that this investigator interviewed appellant, reported his. findings, and testified in court all on behalf of defendant-appellee. To me this is more than sufficient to demonstrate to the trier of fact “the flag under which he [Rock] sails.” But the majority would have this Court go even further and reveal not only the flag but the seamstress who sewed it. To me, this is an unwarranted departure from the well established rule that the jury should not be told of a defendant’s insurance coverage. Indeed, having told the jury that Rock was an investigator for the defendant, this was enough to alert everyone in the courtroom as to this witness’ possible prejudice and bias. The trial judge therefore did exactly the right thing by refusing to reveal that defendant’s insurance company directly employed Mr. Rock.

Fleischman v. Reading, 388 Pa. 183 , 130 A. 2d 429 (1957), relied upon so heavily by the majority, is easily distinguishable. In Fleischman , as in the present case, an investigator employed by defendant’s insurance carrier went to plaintiff’s hospital room and there secured some very damaging statements from the mouth of the *510 injured man. Here, however, is where the similarity between the two cases comes to an end. In Fleischman , the plaintiff’s statements made in the hospital were immediately reduced to writing and signed by plaintiff. At trial, this document was. used extensively by defense counsel to cross-examine plaintiff. However, not once during this cross-examination did der fense counsel ever indicate that the investigator who secured the. statement was even connected with, the litigation, let alone employed by someone in defendant’s camp. Therefore, on redirect examination plaintiff’s counsel asked .his client who the investigator was, whereupon plaintiff replied, “An insurance man.” Defendant’s motion for the withdrawal ■ of a juror, was denied, and this denial affirmed by our Court on the theory that without the mention of insurance, the jury would have .had no way of knowing .on whose side the investigator was. As the Court there said of this investigator, labelled by Mr. Justice Musmanno as “Mr, Shadow”-: “So-far as the jury was concerned,. Mr. Shadow could even have been someone speaking for the. law-, someone representing the Court, someone authorized to conduct an impartial interrogation.” 388 Pa., at 190 , 130 A. 2d at 433 . In the present case, ho-yvever, far from being a shadow, our investigator is solid as a “Rock.”

On cross-examination, Rock was asked about a. certain ’ interview he. had with the owner of Mama’s Pizzeria. The following .appears of record concerning that interview: “Q. [by Mr. Reath, for appellant] What did you tell him [the pizza shop owner] as to whom you1 representéd?. A. I told him that I was representing-.the defendant in this case.” (Record at ,119a.) At' this point there can be no doubt that every juror must have recognized Mr. Rock’s flag. But,- just to make sure that the markings on this flag were- not *511 .misinterpreted, appellant’s counsel read to the jury the -letter, whose text is set out in the majority opinion, in .which Mr. Rock told his employer that he hoped to '.be able “to secure a recorded statement from him [appellant] which would be favorable toward the insured ■driver . . . .” It is indeed curious that the majority opinion clearly recites the contents of this letter in order to show the bias of Mr. Rock, yet fails to mention that the letter was also read to the jury for precisely the same purpose! (Record at 126a.)

Moreover, twice during his charge to the jury the trial judge called attention to the fact that Mr. Rock worked for the. defendant (Record at 139a and 169a), the second time even saying: “I have already told you that . . .• [Rock] was a paid investigator on behalf of the defendant and his testimony . . . must be consid- ■ ered in light of his credibility. In determining . . . [Rock’s] credibility, you may, of course, consider whatever interest he has in the outcome of the case.” In spite of this charge, the majority would have us believe •that reversible error • was committed by the lower court’s failure to instruct the jury as to Rock’s possible bias. Not only did the judge so charge, but furthermore he did so completely sua sponte. At no time •did counsel for appellant request such an instruction; at the conclusion of the charge, when asked by the court, appellant’s counsel said of the charge actually given: “I have no further comments. Thank you, sir.” (Record at 175a) Appellant’s new trial motion was devoid of any indication that the charge on Rock’s interest in the case, was in any way erroneous. And finally, even before this Court, both in his brief and on oral argument, counsel for appellant has voiced not a single word in objection to the charge vis-a-vis Mr. Rock’s testimony, his argument going solely to Rock’s cross-examination. Thus, the majority has taken what *512 it believes to be an error in the jury charge and used it as a basis for relief when it was never argued below, never pressed on appeal, and never even made. .

There is finally one more significant issue raised by this appeal, an issue that the majority does not even see fit to recognize. During its deliberations, the jury sent a note to the trial judge indicating that it was deadlocked on the issue of contributory negligence. The judge replied in writing that deliberations should continue until dinner time. Although the majority sets out the text of this jury note, it nowhere indicates that counsel for appellant was never informed that' the note was sent. I realize that the majority opinion writer, as well as Mr. Chief Justice Bell and myself, do not believe that the failure to inform counsel of such a jury question is reversible error per se, nevertheless, a majority of this Court has adopted a prophylactic rule requiring a new trial whenever such an incident occurs. See, e.g., Argo v. Goodstein, 424 Pa. 612 , 228 A. 2d 195 (1967).

Thus, although I continue to adhere to my previous position that a new trial need only be granted upon a showing that the failure to notify counsel prejudiced one of the parties, and although I do not believe that any such prejudice was here shown, one would, following the prior decisions of this Court, be forced to conclude that a new trial was properly awarded in this case were it not for the fact that this argument has been waived.

Admittedly, appellant failed to raise the issue of the jury’s note in his motion for new trial. However, in his brief before this Court, counsel for appellant has attached an affidavit in which he explains why the issue was not timely raised. According to counsel, he did not discover that the note was sent until he read the notes of testimony which contained the jury’s mes *513 sage. He then avers that these notes of testimony were not available when the new trial motion was filed with the court below. Although I am sure that all the allegations contained in counsel’s affidavit are true, they nevertheless fail to explain satisfactorily the failure to raise this issue below.

It is true that the new trial motion was filed before the notes of testimony had been made available. But, new trial motions are usually filed in just this manner. The motion in the present case contained the typical clause in which counsel reserved the right to file additional reasons to support the motion when the trial record was prepared. However, even though the motion was not disposed of until October 7, 1966, almost ten months after it had been filed, and even though counsel must have had more than enough time to scan the trial record during that time, still the issue of the jury’s note was not raised below as an additional reason for granting a new trial. I must therefore conclude that this issue has been waived.

Absent the jury’s note as a reason for reversal, I am totally unconvinced by the majority’s opinion, and therefore dissent.