DIXIE-LAND IRON & METAL COMPANY, INC., Plaintiff-Appellee,
v.
PIEDMONT IRON & METAL COMPANY and Philip Goldberg,
Defendants-Appellants.
No. 76-3355.
United States Court of Appeals,
Fifth Circuit.
Nov. 6, 1978.
Wm. J. Williams, Augusta, Ga., for Philip Goldberg and N. Cohen.
George R. Ragsdale, Peter M. Foley, Raleigh, N.C., for Piedmont Iron & Metal Co.
Glenville Haldi, Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before BROWN, Chief Judge, TUTTLE and THORNBERRY, Circuit Judges.
PER CURIAM:
After receipt of the record for purpose of the appeal the appellant's counsel learned for the first time that while the jury was deliberating, the Trial Judge responded directly to an inquiry1 from the jury without notifying counsel either as to the fact of inquiry or the answer given.
Considering the Court's charge to the jury there was at least the possibility that the jury in determining the actions of the various defendant participants could legitimately have found varying amounts as to the several defendants. Consequently we have no basis for concluding that this action of the Trial Judge was not harmful. Absent that the venerable case of Fillipon v. Albion Vein Slate Co., 1919, 250 U.S. 76, 39 S. Ct. 435, 63 L. Ed. 853, compels reversal. See also Rogers v. United States, 1974, 422 U.S. 35, 95 S. Ct. 2091, 45 L. Ed. 2d 1; Petrycki v. Youngstown & Northern R. R. Co., 6 Cir., 1976, 531 F.2d 1363, Cert. denied, 1976, 429 U.S. 860, 97 S. Ct. 161, 50 L. Ed. 2d 138. As it is not likely that the other asserted errors will recur on retrial, we need not discuss them.
Reversed.
"If we find for the plaintiff, do we lump the verdict? Do we pro-rate it? If so, how?"
"No pro-ration." (signed with the Judge's initials)
