Opinion
October 16, 1930.
November 20, 1930.
Practice C.P. — Trial — Remark of counsel — Withdrawal of juror — Discretion of court — Abuse.
During the trial of an action of assumpsit, the plaintiff's attorney in addressing the jury stated that "the attorney for the defendant has a great deal of practice in trying this kind of cases and this kind of claims." The trial judge did not consider such language to be any aspersion on the character of the attorney, who was the subject of the remark, and refused the defendant's motion for the withdrawal of a juror.
In such case the court below did not abuse its discretion in refusing to withdraw a juror and judgment for the plaintiff will be affirmed.
Appeal No. 337, October T., 1930, by defendant from judgment of M.C., Philadelphia County, January T., 1928, N.o 836, in the case of Walter Cohen v. Harry Weinreich and Irvin I. Weinreich, co-partners and trading as Coons and Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Affirmed.
Assumpsit on an oral contract. Before KNOWLES, J.
The facts are stated in the opinion of the Superior Court.
Verdict for the plaintiff in the sum of $1,552 and judgment entered thereon. Defendant appealed. Error assigned, among others, was the refusal of the defendant's motion for the withdrawal of a juror.
Sylvan H. Hirsch, and with him Sundheim, Folz Sundheim, for appellants.
Harry P. Felger of Golder, Felger and Lemisch, and with him Otto Kraus, Jr., for appellee.
Argued October 16, 1930.
It will serve no good purpose to discuss at length the questions involved in the present appeal.
The assignments are directed to the refusal of the court to withdraw a juror after the attorney for the plaintiff in his second speech to the jury stated, "The attorney for the defendants has a great deal of practise in trying this kind of cases and this kind of claims." The trial judge did not take the view that any aspersion on the character of the attorney who was the subject of the remark was intended. We think there was more importance attached to the remark than is justified. The impropriety of the remark is not so obvious as to require us to interfere in a matter which we consider, in this case, was within the discretion of the lower court.
The other assignment is directed to a colloquy between the trial judge and plaintiff's attorney. There is no merit in it.
The judgment is affirmed.