¶1Dissenting Opinion by
¶2Mary Emma Wolfe, the plaintiff in this case, brought an action in trespass against Dr. Paul P. Biggie, alleging negligence in the performance of a surgical operation. The jury returned a verdict in favor of the defendant. After the trial it was ascertained that one of the jurors, William O. Engle, was a friend of the defendant, Dr. Biggie, and that he, Dr. Biggie, was one of Engle’s customers in his motorboat business.
¶3It was also learned that Engle, the juror, was himself a defendant in a case which was to come up during the same term of court and his case would be decided by the very jurors with whom he would associate and fraternize during the term of the court.
¶4With this revelation it should be obvious that Engle’s participation in the present trial vitiated the entire trial and rendered it utterly void. Leaving aside the fact that Dr. Biggie was a client of the involved *181juror, how could that juror be impartial when he knew that he himself was to be a litigant in the same court, during the same term, and before the same jurors who were his present colleagues? It would be contrary to human nature to assume that throughout the Wolfe trial Engle at any time forgot that he was a litigant. His participation in the trial was not that of an impartial judge, but that of the partisan. His partisanship destroyed the neutrality of the jury bos, his personal interest wrecked the scales of justice supposedly always in balance.
¶5Justice is portrayed blindfolded because it is assumed that the judge or juror will look at nothing which may induce him to decide one way or the other because of personal gain, favor, or advantage. But the juror in this case stripped off his blindfold to see that the defendant in the case he was trying was his customer and to look also at the trial list which told him that he was soon to be a party litigant and possibly it would be to his interests to curry favor with his fellow-jurors who were later to be the jurors of his cause.
¶6With this appalling disclosure before this present Court, how can the Majority decide that the trial was proper and fair and that the plaintiff, Mary Emma Wolfe, was accorded due process of law? A juror should be as impartial as sunlight, as unprejudiced as the falling snow, and as unbiased as the angel of truth. Engle was not such.
¶7I do not say that he was dishonest, but I do assert that his personal interests were such that he could have been swayed, consciously or unconsciously, toward Dr. Biggie’s side of the case because of his own private interests in the court’s business. A juror has no right to be involved in litigation which is to be resolved by his fellow-jurors. This kind of interest poisons the very fountain of justice, it contaminates the waters of fair play, it destroys the scalebeam which is *182intended to hold both sides on an even level of consideration, it makes a mockery of the courts.
¶8Only three years ago this Court had before it the case of Com. ex rel. Fletcher v. Cavell, 395 Pa. 134, where the defendant who was convicted of murder in the first degree, sought a writ of habeas corpus, charging that he had been denied a fair trial because the foreman of the jury which convicted him was a son-in-law of the detective who had conducted the investigation for the prosecution. This Court refused the writ. I wrote a Dissenting Opinion in which I said: “It seems like carrying coals to Newcastle or transporting spaghetti to Naples to say that a juror should never have a personal reason, apart from the evidence in the case, to desire a verdict for one side or the other ... I am not saying that the son-in-law here, the foreman of the jury, was influenced by his marital relationship to the detective-prosecutor to the extent that he overlooked evidence favoring the defendant and emphasized the evidence supporting the prosecution. I am not saying that, but at the same time I am also not saying that he was not so influenced. And if there existed only the probability that he could have been so influenced, the defendant was unquestionably denied a fair trial.”
¶9After Fletcher had lost in this Court, he sought a writ of habeas corpus in the United States District Court which also refused him relief. He appealed to the United States Court of Appeals which reversed the district court and ordered a new trial, saying: “We rest our decision on the firm ground that Stephenson [the son-in-law juror] in declaring himself to be impartial and without prejudice, while not revealing that he was the son-in-law of the County Detective who was one of the investigative officers in the very matter to be tried, who was to be a material witness at the trial, and whose testimony Stephenson would believe, created *183an intolerable situation that resulted in a fundamentally unfair trial to appellant.” (United States of America ex rel. James Fletcher v. A. Cavell, 287 F. 2d 792.)
¶10The Court of Appeals said further: “It could have been with this general thought in mind that Stephenson (as he also testified) prior to being selected as a juryman remarked, ‘. . . we didn’t think that the defendant would accept me as a juror by being relation (stet) to him.’ He said he was surprised at being left on the jury. He had also said while being examined on his voir dire that he was ‘perfectly impartial’; was free of prejudice or bias; could render a verdict solely from the evidence adduced from the stand.”
¶11The fact that a juror feels he may be “perfectly impartial” is not determinative of the question as to whether he can be impartial, given his personal involvement in the trial. Moreover, it will be noted that Stephenson himself was surprised that he was left on the jury.
¶12It will be noted in reading the Majority Opinion in the case at bar that a suggestion was made at the trial that Engle be excused from serving on the jury and that the trial proceed with eleven jurors, but the suggestion was rejected by the counsel for Dr. Higgle, the ultimate verdict-winner in the trial.
¶13The Majority Opinion says that “there is not a scintilla of evidence that such fact [Engle’s presence on the jury] had anything to do with the verdict rendered.” Does the Majority suppose that Engle would say that he was influenced in his deliberations on the case by the fact that he sold to or was contemplating selling a motorboat to Dr. Higgle? Moreover, as I said in the Fletcher case, it is not what the juror actually did but the fact that there existed “the probability that he could have been so influenced” which denied the defendant a fair trial.
¶14*184I agree with the Majority that the Trial Judge should have summoned the attorneys in the case before him prior to ordering a new trial, but whether he called them or not, the fact remains that the trial was not the hind envisaged in accordance with the traditions of Anglo-Saxon justice. The fact remains, which no one denies; that Miss Wolfe’s case was decided not by twelve impartial jurors, but by eleven jurors and one person whose interests could well have made him an advocate not for even-handed justice but for a verdict in which he saw an advantage for himself. The fact remains that one of Miss Wolfe’s jurors was a litigant in another case which would eventually be passed upon by some of these same companions now in the jury box with him and later to be in the sanctity of the jury box on a case, in which he would be a defendant. How can the Majority evaluate such a situation as being consonant with the jury trial guaranteed by the Constitution?
¶15Engle’s presence in the jury room where the jurors were considering Miss Wolfe’s case was as improper as if he were a total stranger. This Court decided, as recently as November 14, 1961 that a judge may not go into the jury room to give a juror a glass of water.
¶16One of the reasons justifiably advanced in support of the thesis that the famed Sacco-Yanzetti trial was not a fair trial is that a man summoned as a juror and who fraternized with the veniremen who later became jurors in the case, took the stand as a witness against Sacco and the District Attorney asked the jury to accept this witness with greater confidence because they had something “in common with him”!
¶17*185Tlie situation in this case is not much different, even though it is not a criminal case.
¶18The Majority is offering Miss Wolfe the opportunity to file a motion for a new trial on the basis that she may argue that the verdict was against the weight of the evidence or for some other reason, apart from the improper conduct of juror Engle. This does not accord to her justice. She is entitled to a new trial because she did not get that hind of an impartial trial by that kind of a jury guaranteed under the concept of jury trial as recognized by our Constitution and the law of the land.