Dissenting Opinion by
Mk. Justice Musmanno:The Majority Opinion in this case can be summed up quite succinctly in Shakespeare’s phrase: Much Ado About Nothing. During the jury’s deliberation, the jury sent to the trial judge two requests for additional instructions, namely: 1. “Since this was a dual transmission truck, what gear was it in as it approached the top of the hill? 2. “What is the top union wage for welders?”
To each of these questions, as the Majority Opinion points out, the judge gave the following answer: “You must remember the testimony as given by the witnesses on the witness stand.”
The Majority is ordering a new trial because of these answers and I repeat: Much Ado About Nothing. Who was hurt by the judge’s answers? No one. The answers were as innocuous as a soft zephyr of a summer’s evening. They merely reminded the jury that it was its job to recollect the testimony. The jury had not asked for instructions on law. They asked about facts adduced at the trial. They were as well qualified as the judge to recall what was said about these items at the trial, and the judge so told them as he was required to do.
The Majority complains that the judge gave his answers to the jury in the absence of trial counsel, but it fails to state that counsel for both sides appeared in the courtroom while the jury was still deliberating, and they were informed about the questions submitted by *438the jury and the answers advanced by the judge. Neither counsel objected to this procedure, neither counsel asked the court to amplify what the judge had said to the jury, and neither counsel excepted in the slightest to what had been done.
In the Majority Opinion filed this date in the case of Lobalzo v. Varoli, 422 Pa. 5, the Majority said that “counsel shall not sit idly by,” during any crucial proceeding in the trial and then ask for a new trial if the verdict goes against him. In the case at bar, appellant’s counsel not only sat “idly by,” but practically went to sleep. He was not in the courtroom when what he complains about happened, and then when he finally showed up in the courtroom he not only again sat idly by — he remained as silent as the sphinx, and now the Majority proclaims for him.
The Majority Opinion says that the trial judge should “have no intercourse with the jury in the absence of counsel.” Here again the bard of Stratford-on-Avon must speak: Much Ado About Nothing. The judge’s communication with the jury was meager, taciturn— it was practically uncommunicative. If it had merely told the jury the state of the weather, it could not have been less controlling on the verdict. And yet on this exchange of weather signals the Majority orders a new trial.
In the Lobalzo case, the Majority, refusing to consider the complaints of the appellant attorney who charged that the trial judge failed to instruct the jury on contributory negligence, misstated the law of proximate cause, and confused the facts, declared that a new trial was impossible because, it said, “counsel sat idly by”. But here the Majority does order a new trial, although counsel also “sat idly by,” and, by ordering a new trial, the Majority adds to the “further burdening of our trial courts,” which the Majority deplored in the Lobalzo case.
*439No one is consistent throughout his whole life. Everybody at some time or another says something this year which conflicts with what he said last year, or last month, last week, or even yesterday, but I should think that the highest appellate court in this Commonwealth should try to be consistent throughout one particular day. It should not on the same day, as it does in the Lobalso case, condemn an attorney for “sitting idly by” and then reward another attorney, as in this case, for the same type of idle squatting.
Apparently aware that the reason just discussed is hardly enough on which to base so drastic an order as compelling repetition of a trial already completed, the Majority says that the written message of the trial judge was not preserved. Here indeed is an abundance about nothing. What was the message given by the Judge: “You must remember the testimony as given by the witnesses on the witness stand.” And because this monumental instruction, this phenomenal utterance, this historical pronouncement has not been immortalized in the documentation of the case, a new trial, with all its expense, time consumption, suspense and worries, must be performed. This is not only Much Ado About Nothing; it is Exuberance about Zero. Appellants’ counsel has stated that no record was made of the questions and answers but he does not in his brief specify the absence of these innocuous slips of paper as a reason for a new trial. It would have been desirable if the slips had been retained, but no one questions the correctness of the judge’s recollection of what they contained. Moreover, it would have been a simple matter for counsel to have gotten affidavits from the jurors as to the wording of the missives, if any one really thought their preservation was vital.
And then, even if it were to be assumed that the judge should not have sent any message to the jury in the absence of counsel to the jury, this hypothetical ir*440regularity would not invalidate the trial unless the given instruction contained error and no one can contend that it did. In Sebastianelli v. Prudential Insurance Company, 337 Pa. 466, our eminent jurist Justice Horace Stern, later Chief Justice of this Court, said that where a judge instructs the jury in the absence of trial counsel, and “no error appears in the instructions given,” the losing party “has no grievance.” Since there was no error here in the judge’s instruction, the Majority’s ordering of a new trial is wholly out of place, if Sebastianelli is still the law.
But, the Majority says, Sebastianelli is no longer the law and points to the case of Glendenning v. Sprowls, 405 Pa. 222, as its annihilator. If there ever was a non sequitur in a Court decision, an improper citation of precedent and an attempt to make much out of nothing, this is it. The Glendenning case, is so different from the Sebastianelli case in its facts, setting, dramatis personae, scenery, legal principles and procedure involved that one must wonder whether the Majority reviewed it before citing it, even though the writer of the Majority Opinion here was on this Court when Glendenning came down.
Let us refresh ourselves with Glendenning. That case had absolutely nothing to do with a judge sending a message to the jury. It had to do with a judge practically taking up quarters in the jury room. While the jury was deliberating, the judge went into the jury room six times and on one occasion accompanied a juror to the telephone as the latter talked to his wife. In explaining how it came about that the judge almost turned the passage between his chambers and the jury room into a revolving door, the judge related that he went into the jury room to provide the jurors with a pitcher of water; to arrange for a ride home for a juror; to tell the jury to. refrain from arguing too loudly because they might be overheard; to allow a juror to *441leave the jury room and telephone his jealous wife (!) in the presence of the Judge; and to tell a juror that it was none of the jury’s business when a juror asked him if insurance had anything to do with the case. Short of swinging a hammock in the jury room and undulating in it to the rhythm of the jury’s animated discussions, it is difficult to conjure up a more companionable association between judge and jury than Glendenning where the judge played water boy, transportation clerk, and heart salver.
And yet, on this showing of facts which is no closer to the facts in this case than Pluto is to Mercury the Majority says that Glendenning modifies or cancels out Sebastianelli. To cite Glendenning as authority for ordering a new trial because a judge transmits two inconsequential greetings to the jury is to use a sledge hammer to kill a.flea.
The appellants argue some very serious questions before us on appeal. They claimed that they were seriously wounded by elephantine missteps on the part of the trial court. The Majority here has ignored these averred disablements and directed its whole therapeutic attention to a flea bite.
So far as a decision on the real issues in this case the appellants got no enlightenment but since they did get a new trial, Shakespeare’s words are eminently applicable to them: All’s Well That Ends Well; for the appellees, all their efforts to hold a verdict justly won, have become Love’s Labour Lost. But for the legal profession, ever eager to add to its store of knowledge on procedure, I can only repeat that the Majority Opinion is Much Ado About Nothing.