Narciso v. Mauch Chunk Township

• Decision Date: 24 March 1952
• Parties: NARCISO et ux. v. MAUCH CHUNK TP.
• Court: Pennsylvania Supreme Court

87 A.2d 233

369 Pa. 549

NARCISO et ux. v. MAUCH CHUNK TP.

Supreme Court of Pennsylvania

March 24, 1952

Argued January 15, 1952

Appeal, No. 27, Jan. T., 1952, from judgment of Court of Common Pleas of Carbon County, Oct. T., 1948, No. 78, in case of Emedio Narciso et ux. v. Mauch Chunk Township. Judgment reversed.

Trespass for personal injuries. Before McCREADY, J.

Verdict for defendant and judgment entered thereon. Plaintiffs appealed.

Judgment reversed and a new trial ordered.

Martin H. Philip , with him Philip & Philip , for appellants.

Albert H. Heimbach , for appellee.

Before DREW, C.J., STERN, STEARNE, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. CHIEF JUSTICE DREW

On the night of March 19, 1947, Mary Narciso stepped into a hole in a public street in Mauch Chunk Township, Carbon County, and received serious and painful injuries. She and her husband Emedio Narciso, brought this suit against the township to recover compensation. At the trial they produced evidence which, if believed by the jury, established negligence. Defendant, on the other hand, sought to show that there was sufficient light for wife-plaintiff to have seen the hole and avoided it had she exercised reasonable care. On these issues the case was submitted to the jury which returned a verdict for defendant. Following the denial of a motion for new trial and the entry of judgment on the verdict, plaintiffs appealed.

Two issues are raised by the appeal. The first concerns the refusal of the trial judge to affirm a point for charge. No exception was taken to that ruling and it is, therefore, not properly before us for review: Gross v. Clapper , 369 Pa. 348, 85 A.2d 618.

The second point, however, raises a serious question as to the propriety of certain remarks by counsel for defendant in his closing address to the jury. In that speech counsel admittedly stated that the suit in reality was against the taxpayers of the township and not against the township itself. It is plaintiff's contention that this remark was so improper and prejudicial that it was likely to appeal to the passions and prejudices of the jury that a new trial should be granted.

It is well established that any statements by counsel, not based on evidence, which tend to influence the jury in resolving the issues before them solely by an appeal to passion and prejudice are improper and will not be countenanced. As we have stated on many occasions: "... a verdict obtained by incorrect statements or unfair argument or by an appeal to passion or prejudice stands on but little higher ground than one obtained by false testimony": Saxton v. Pittsburg Railrways Co ., 219 Pa. 492, 495, 68 A. 1022; Kelly v. Scranton Railway Co ., 270 Pa. 77, 79, 112 A. 748; Mittleman v. Bartikowsky , 283 Pa. 485, 486, 129 A. 566; Olsavsky v. Bamford , 363 Pa. 47, 50, 68 A.2d 594.

This Court is, of course, well aware that occasionally, in the heat of trial, counsel may make a statement which is not justified by the record but which may or may not have had a prejudicial effect on the jury. For that reason the granting of a new trial rests largely in the discretion of the trial judge. If he feels that an admonition to the jury to disregard the remark is sufficient we are reluctant to reverse since the trial judge is in a better position to see and understand the atmosphere of the trial and the effect the statement had on the jury. See e.g.: Clark v. Essex Wire Corp ., 361 Pa. 60, 65, 63 A.2d 35; Nat. Bk. & Tr. Co. v. Enameled M. Co ., 324 Pa. 186, 188 A. 143; Wyatt v. Russell , 308 Pa. 366, 370, 162 A. 256; Donahue v. Punxsutawney Boro ., 298 Pa. 77, 84, 148 A. 41. But this Court is quick to act when there has been an abuse of discretion and that is determined by an examination of the remark made, the circumstances under which it was made and the precautions taken by court and counsel to remove its prejudicial effects: Wilhelm v. Uttenweiler , 271 Pa. 451, 453, 112 A. 94.

Although the standards of our bar are high the cases involving improper remarks of counsel are numerous. From these cases it is quite clear that this Court will not tolerate any irrelevant remarks by counsel which are reasonably likely to have a direct and prejudicial effect on the award of damages. The most obvious examples of this rule are the cases where attempts were made to show that defendant is protected by liability insurance: Curran v. Lorch , 243 Pa. 247, 90 A. 62; Hollis v. United States Glass Co ., 220 Pa. 49, 69 A. 55. However, it has also been held error to state to the jury the amount claimed in the complaint ( Bullock v. Chester & Darby T.R. Co ., 270 Pa. 295, 113 A. 379; Carothers v. Pittsburg Ry. Co ., 229 Pa. 558, 79 A. 134), the amount of a previous award ( Fisher v. Dela., L. & W.R.R. Co ., 227 Pa. 635, 76 A. 718; Wagner v. Hazle Township , 215 Pa. 219, 64 A. 405), the size of a defendant corporation and its ability to pay a large verdict (Saxton v. Pittsburg Railways Co ., supra), or the dependence of plaintiff on charity if a satisfactory verdict is not obtained (Davis v. Stowe Twp ., 256 Pa. 86, 100 A. 529).

That line of cases directly rules this case. The only purpose that counsel could have had in stating that the suit was in reality against the taxpayers was to appeal to the prejudice of the jurors against expenditures of the taxpayers' money and the possible resultant increase in taxes. It was an improper attempt to influence the award of a verdict and was just as fundamentally prejudicial as was its opposite made in Walsh v. Wilkes-Barre , 215 Pa. 226, 64 A 407.There, plaintiff was injured as a result of a...