(concurring in part and dissenting in part).
I concur in that part of the opinion of the majority which holds that the trial court committed no error in permitting one of the partners in the law firm representing the taxpayer to testify in the ease. I likewise concur in the holding that the trial court committed no error in allowing counsel to argue the law of the case to the court in the presence of the jury. Obviously, it was not prejudicial error in this particular instance. I would, however, make it clear that if I were personally presiding over a jury trial I would not permit the law to be argued in the presence of the jury.
I must give expression, however, to my earnest disagreement with the holding of the majority that there must be a reversal because of the conversation on the elevator.
Whether the conversation was such as to justly cast suspicion upon the verdict was a question for the determination of the trial court in the exercise of sound legal discretion. Cf. Annotations 55 A.L.R. 751 and 62 A.L.R.2d 295.
The trial judge did hear testimony and found the conversations harmless. That finding is overwhelmingly supported by the evidence. We should let it rest there.
I believe the true rule was announced in California Fruit Exchange v. Henry, 89 F.Supp. 580, affirmed 3 Cir. 1950, 184 F.2d 517:
“The courts look with suspicion upon any communications between parties to a suit or their counsel and the jury impaneled to try it; and if such communication is had and it appears that a conversation was had about the suit, or the communication is not explained satisfactorily, it will, in itself, be ground for a new trial. If, when explained, however, it can be seen that in the communication nothing was said about the case and nothing was done for the purpose of influencing the mind of the jury, and that the communication or conversation had no influence of the verdict which was reached, no ground exists to set the verdict aside for the reason that said comment could not have been prejudicial.”
On what authority does the majority reach the present result ? Only two cases are cited.
I agree that Pekar v. United States was correctly decided, but that was a criminal prosecution, in which none other than prosecuting attorney engaged one of the jurors in conversation about the bonding business in which that juror was engaged. The impropriety and likely effect of such a conversation are plain.
The majority also cites Mattox v. United States, another criminal prosecution, in which the defendant had been convicted of murder and sentenced to death. It is true that Mr. Chief Justice Fuller there used the language quoted in the majority opinion, but he also said:
“Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer *126in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.”
I invite attention to the language, “at least unless their harmlessness is made to appear”.
It must be quickly pointed out that the conversation with which we are here involved was not private at all. Nor do I consider that there was an “approach”. The case had already progressed to and through the argument of counsel. The court was in recess for the noon luncheon. The undisputed proof shows that the jurors got on the elevator first. They held the doors open so that Mr. Barfield and his sister-in-law could get in the elevator and ride down with them. The authorities hold that Mr. Barfield was under no duty to refuse this polite gesture and thereby risk offending the jurors. It is true that if he had declined the hospitable gesture, no opportunity for the conversation would have taken place. And it is also true that had the jurors not held the doors, the point would not now be before us.
From an examination of this record I am unable to find any warning or direction from the trial judge that the parties and jurors were to have absolutely no communication. They were told not to discuss the case, and the case was not discussed here. So, what we have is a reversal and a new trial because of a casual conversation, in the presence of a number of people, in a public elevator, in a public building, at noon day, — a conversation which the juror, an experienced business man, flatly swore had no influence on him whatsoever. As future cases are tried, even to the point of completing argument to the jury, if a litigant sees that matters have not gone well with him he can slyly frustrate the entire proceedings and guarantee a mistrial, if his adversary falls for it, by striking up a conversation on a public elevator, in the presence of others, dealing with nothing any more serious than inquiring about possible mutual acquaintances.
The majority opinion states, although no such findings were made below, “it is clear that the taxpayer president approached the jurors. They did not approach him”. At another point, the majority states, “the president of the taxpayer corporaton deliberately sought to identify himself with one of the jurors in a way that would have been impossible through an inadvertent or accidental meeting”. Again, there were no findings to this effect in the court below and I submit that there is no testimony to support such a finding here, even if we had the power to make findings. Nothing, in my view, if I had the power to make a finding, could appear more inadvertent or accidental than to have someone hold the doors to allow me to board a public elevator for a ride downstairs to lunch.
True, the conversation was opened by Barfield, but talk of mutual acquaintances in this section is just about as common as speaking of the weather. It is often an overworked item of polite conversation when the parties do not know of anything else to talk about.
The majority opinion does not contain the following undisputed testimony of the juror, to which the government offered no objection:
“Q. Was anything said about their business or any part of the case ?
A. Oh, no. He had more sense than that, I think.
THE COURT: This doesn’t mean there is any implication or impropriety, but whenever any juror ever has any contact with any party, it frequently happens that way, they run together or pass pleasantries or something like that, but still we also like to have it cleared up.
A. Well, I know better than that, to discuss any thing like that.
Q. (by counsel for appellee) Your Honor, may I just complete the record by asking Mr. Lockhart whether this conversation, whether the content of this conversa*127tion in any way influenced his decision in the case (omitting interpolations) ?
MR. LOCKHART:
A. No, No, I have been in the business world all my life, ever since I was big enough to walk. I don’t let business and something else have anything to do with my duty. None at all”.
The Government, in its brief, cites Ryan v. United States, 1951, 89 U.S.App.D.C. 328, 191 F.2d 779. This was a criminal prosecution for robbery. The prosecuting attorney talked to several members of the jury about other matters during recesses in the trial. The court held that fraternizing or the appearance of it between counsel and jurors should be carefully avoided, but affirmed the conviction on the ground that the conversations had not been prejudicial. The court further held that the trial judge was entitled to take the testimony of the jurors, subject to cross examination, as to whether or not they were biased by such conversations.
In sustaining the Trial Judge in Ryan, the Court of Appeals stated (at p. 783):
“The searching inquiry conducted by the trial judge for evidence of bias or prejudice gives adequate support to his negative conclusion on this question of partiality. * * * We hold in the present case that the question of bias or prejudice was susceptible of an intelligent judgment by the trial judge on the evidence adduced upon the hearing on the motions, and that we are not warranted in over turning his conclusion.”
The opinion of the majority, in my judgment, is directly in conflict with the principles announced in Ryan.
I agree that no party to any suit should ever say a word to a juror. Laymen, however, do not understand this as lawyers should. The appellees should not be required to forfeit their verdict because of this elevator conversation after the trial judge heard the evidence and found it harmless.
If Barfield should have been punished for the conversation, the trial court could have inflicted it under its powers of contempt. It is significant that it did not see fit to do so.
I must confess, too, that I do not feel any overwhelming approval for the free ride the appellant got out of this situation. If the verdict had been for it, any question of prejudice from this conversation would have disappeared from the case. The Government would have had its verdict, regardless of the holding we now encounter that the conversation was prima facie, incurably, and fatally infectious.
I would adhere to the rules announced in California and Ryan and affirm this Judgment.