Appeal, No. 14, May T., 1938, from order of C. P. Dauphin Co., June T., 1936, No. 891, in case of Bertha Welshire v. Annie E. Bruaw et al., executors. Order affirmed.

Petition and rule for new trial. Before SHEELY, P. J., specially presiding, and FOX, J.

The facts are stated in the excerpts from the opinion of the court below as follows:

"One of the many reasons offered by plaintiff in support of her motion for a new trial is the following:

"The verdict is unconscionable, is unjust and is not such a verdict as the law contemplates as a legal verdict, a number of jurors forming a minority having been coerced and misled into a verdict for the defendant by the unlawful statements and actions of one Harry Gerbrick, a tipstaff, as appears by the affidavits of two of the jurors. . . .

"The plaintiff offered testimony tending to show that a number of the jurors were coerced by the tipstaff who had them in charge; that the tipstaff was intoxicated; that he was in the jury room a number of times during their deliberations and, particularly, between 9:15 and 9:30 a. m. went to the jury room and told the jurors that the judge was in the courthouse and would give them 'the devil' if they did not agree by 9:30.

"The defendants objected to the admission of the testimony of the jurors, but at the suggestion of the Court all the testimony was admitted subject to a subsequent ruling. The first question presented for our consideration, therefore, is whether the testimony of the jurors, or any part of it, can be considered in passing upon this motion.

"It is to be noted that it is not contended, and there is no evidence even tending to prove, that there was any misconduct on the part of the defendants or their counsel, or that they were in any way connected with the matters complained of. Nor is it contended that the tipstaff had any desire to influence the jurors for one side or the other, but simply that he coerced them into bringing in a verdict.

"The Courts of Pennsylvania have frequently considered the admissibility of testimony of jurors as to what occurred in the jury room, but never, apparently, under the circumstances here disclosed. It has been held that jurors are incompetent to testify that they reached their verdict by drawing lots, Cluggage v. Swan, 4 Binney 150, 158 (1811); Stull v. Stull, 197 Pa. 243 (1900); or that they did not understand the charge of the Court or the question submitted to them, McPeek v. Shafer, 120 Pa. Super. 425 (1936); or that their foreman went to the scene of an accident and made measurements which he reported to the jury while they were deliberating, Friedman v. Ralph Brothers, Inc., 314 Pa. 247 (1934); or that they meant to find a verdict for the plaintiff when the written verdict and the oral verdict delivered in court was for the defendant, Smalley v. Morris, 157 Pa. 349 (1893).

"But jurors may be permitted to testify that their foreman had declared to the jury that the plaintiff had satisfied him with regard to a difficulty in the plaintiff's account in a conversation which he had with him out of court and after the jury was sworn: Ritchie v. Holbrooke, 7 S. R. 457 (1821). The decision in this case was based upon the theory that the testimony was offered to prove the misconduct of one of the parties to the suit rather than the misconduct of the jurors. In Hostetler v. Kniseley, 322 Pa. 248, 253 (1936) it was indicated that a juror might testify as to whether or not he had made a statement during the trial indicating his prejudice. And in Mix v. North American Company, 209 Pa. 636, a juror was permitted to testify as to telephone calls received from and conversation had with third parties relative to the case during the trial. In McPeek v. Shafer, 120 Pa. Super. 425, the Mix case was distinguished on the ground that, 'Such conduct was certainly improper and involved a fraud on the parties and the court.' It was there said that, 'It is only right that the fraud should be discovered even though it involves the testimony of jurors.'

"From these cases the rule would seem to be that a juror cannot testify as to what occurred between him and the other jurors in the jury room tending to show misconduct on the part of the jurors or to impeach their verdict. But a juror may testify as to his own actions outside of the jury room, or as to the misconduct of one of the parties to the suit or of a third party, particularly if such misconduct amounted to a fraud upon the Court or the parties, or might tend to influence the verdict.

"In the present case the testimony of the jurors is directed to the misconduct of a third party — an officer of the court — and for that purpose it is admissible. There can be no doubt that had one of the parties gone into the jury room and discussed the case with the jurors, the jurors would have been competent to testify to such improper conduct. There is just as much reason to permit them to testify to the misconduct of any other person which might have tended to affect their verdict or their deliberations. The fact that such misconduct occurred in the jury room is immaterial, and would not render their testimony inadmissible.

"The testimony of the jurors would not be admissible, however, to show what effect, if any, such misconduct had upon their verdict. Admission of their testimony for this purpose 'would be an inquisition over the consciences of the jurors as to the grounds and reasons of their verdict' which is condemned in Cluggage v. Swan, 4 Binney 150, and again in McPeek v. Shafer, 120 Pa. Super. 425.

"We have passed upon the admissibility of this testimony because it was received subject to the defendants' objections, and because the principles involved are important. However, this testimony is not essential to a determination of the facts. The testimony of Mrs. Lena Pike, the matron in charge of the women jurors, and Daniel E. Crutchley, the night watchman in the courthouse, which we regard as entirely credible, is sufficient to establish all of the important facts.

"From the testimony it appears that the tipstaff in charge of the jury entered the jury room three times during their deliberations, once immediately after they retired for the purpose of eating his lunch, once during the night to put ice in the water cooler, and again between 9:15 and 9:30 on the morning the verdict was returned. Nothing occurred or was said during the first two visits which in any way affected the case. It also appears that the tipstaff indulged in the use of intoxicating liquor during the time the jury was deliberating and while he had them in charge, and that this fact was known to and was commented upon by the members of the jury. Frequently during their deliberations the tipstaff inquired of the jurors 'how they stood' and suggested that he was getting sleepy and wanted to go home.

"At 9 a.m. of the day upon which the verdict was returned, and after the jury had deliberated for more than twenty-one hours, the jury stood eight to four. At about that time someone reported to the jury that they were to return to the jury box when court convened at 9:30. Between 9:15 and 9:30 a. m., while the jurors were collecting their wraps preparatory to returning to the court room the tipstaff, Gerbrick, went into the jury room, closed the door, and stated that the judge wanted to know what they were going to do and asked whether they had agreed upon a verdict. Upon receiving a negative answer the tipstaff said, 'Well, you better get together and get down there at 9:30 or you will get the devil.' At that time one of the jurors stated that he wanted to talk to the Judge, to which the tipstaff answered, 'You can't talk to the Court.' This request was not reported to the Court.

"When Court convened at 9:30 a. m. the court crier, John Ebersole, was instructed to bring the jury to the court room. He went to the door of the jury room and said, 'Ladies and Gentlemen, come down before the Court.' The jurors requested a few minutes additional time, and then announced that they had arrived at a verdict.

"Immediately after Ebersole left the court room for the purpose of bringing the jury in, Harry Gerbrick, the tipstaff, reported to the Court that the jury stood eleven to one, and was instructed by the Court to bring the jury into the court room. When he returned to the jury room he found that Ebersole was there and had taken charge, and that the jury had agreed upon a verdict.

"It is evident that Ebersole, with instructions to bring the jury to the court room, and Gerbrick, with the report that the jurors stood eleven to one, passed in the hallway. However, from the standpoint of the jury, the situation was that someone had informed them about 9 o'clock that they must return to the court room at 9:30. Between 9:15 and 9:30 Gerbrick appeared and told them that the Judge was on the bench and asked what he should report, and was told to report that the jury stood eleven to one. He then told them that they had better get together and get down by 9:30 or they would 'get the devil.' A few minutes later Ebersole appeared with the bare statement that the jurors were to come to the court room, and within a few minutes the jury reached a unanimous verdict.

"After a jury has been deliberating more than twenty-one hours, a change from an eight to four vote to unanimity within a half an hour, and particularly under the circumstances here disclosed, is suspicious. It seems apparent that in the minds of the jurors was created the thought that 9:30 was the deadline within which they must agree or suffer some consequence. Everything that occurred in the jury room on that morning served to impress that point upon them and the statement of Ebersole at 9:30 that the jurors were to come to the court room, without further explanation, was the climax. It is not surprising that a verdict was agreed upon a few minutes thereafter.

"The success of the jury system depends mainly on two things: First, the selection of intelligent, honest and representative jurors; and second, protecting the jurors from any outside communication or influence which might prevent them from exercising their independent judgments. In Schankweiler v. Pennsylvania Light Company, 275 Pa. 50, 53, the Supreme Court said: 'That confidence in trial by jury may be preserved and that parties may feel a verdict is based on an honest consideration of the evidence and not on prejudice or sympathy, every appearance of evil must be avoided and every precaution taken to guard against all matters tending in the slightest degree to corrupt or influence the verdict.' Again in Mix v. North American Company, 209 Pa. 636, the Supreme Court said: 'It has been said that the greatest object of civil government is to get twelve honest men in the jury box. If this is true, after they get there they must be kept there, hedged around not only with their own integrity, but with every precaution against evil communication which may corrupt them; and when they go to their room to deliberate an issue in which is involved the life, liberty or property of their fellow-man, their conduct in the discharge of such solemn duty must comport with it, else confidence in the system which is the best achievement of civilization will be lost.'

"The general question was considered recently by Chief Justice KEPHART in Hostetler v. Kniseley, 322 Pa. 248 (1936), and he there points out (page 253) the necessity of maintaining the efficiency and integrity of the jury on the highest possible plane, and states, 'To this end safeguards must be thrown about jurors in the exercise of their duties so that they may perform them without hindrance from any source.' See also Commonwealth v. Hurd, 177 Pa. 481.

"Under our jury system one juror may prevent a verdict from being rendered and, unfortunate though such a result may be, especially where, as here, the trial has consumed considerable time and has been expensive to the parties and to the county, the juror cannot be censured if he has acted conscientiously. Under no circumstances should he be forced or coerced into agreeing with the majority against his own judgment. A verdict reached by forcing or coercing the minority is not a unanimous verdict, but merely the verdict of the majority. There can be no doubt, and the defendants readily admit, that if such result is reached by the management of a party, the verdict cannot stand; the same result must follow where the result was caused by the misconduct of an officer of the court who is directly charged with the duty of protecting the jurors against outside influence.

"That the conduct of the tipstaff in this case was improper requires no discussion. It was his duty, under the law and under his solemn oath, to take the jury to the jury room for the purpose of deliberation, and to permit no one to speak to them, nor to speak to them himself, except to inquire whether they had reached a verdict. He had no right, without instructions from the Court, to ask the jury how they stood, or to make any remark whatever concerning their deliberations. The practice of a tipstaff keeping himself informed from time to time as to the status of the deliberations of the jurors serves no useful purpose and is to be condemned.

"Jurors come into court from various walks in life, very often without any previous jury experience or knowledge of their duties. They usually have a very keen appreciation of their responsibility and a desire to perform their duties properly and with dispatch. Every court official has a certain amount of authority and is assumed by the jurors to understand court procedure. Statements or instructions from them come from one supposedly in authority and would carry much more weight than suggestions coming from an outsider. It is important to note that it would have been error for the Court to have coerced the jury, or to have attempted to carry out the tipstaff's threat. The Court does have authority 'to use reasonable methods to bring about a verdict founded upon conscientious conviction, and to in a proper manner press upon the jury their duty to render such verdict; but his methods must not take the character of a mandate with penalties of both moral and physical suffering for disobedience': Miller v. Miller, 187 Pa. 572, 587 (1898); Girard Trust Co. v. Page, 282 Pa. 174 (1925). See also Alabama F. I. Company v. Rice, 187 Ala. 458; State v. La Grange, 99 Iowa 10; Heston v. Neathammer, 180 Ill. 150.

"A new trial must be granted."

Defendants appealed.

Errors assigned, among others, were various findings and conclusions of the trial court.