Uram v. American Steel & Wire Co. of N. J.

• Decision Date: 15 November 1954
• Parties: Stephen URAM, Appellant, v. The AMERICAN STEEL & WIRE COMPANY OF NEW JERSEY, a corporation.
• Court: Pennsylvania Supreme Court

Page 912

108 A.2d 912

379 Pa. 375

Stephen URAM, Appellant, v. The AMERICAN STEEL & WIRE COMPANY OF NEW JERSEY, a corporation.

Supreme Court of Pennsylvania.

Nov. 15, 1954.

The following is the opinion of Judge Drew, in the court below:

Plaintiff brought this action in trespass to recover for damage to his land allegedly caused by emanations of smoke from defendant's Donora mill between the years 1939 and 1945. After a verdict in favor of defendant, plaintiff filed a motion for a new trial. The issue now for our consideration is whether the court en banc should have denied, as it did, plaintiff's motion.

Plaintiff asserted as the first ground for his motion that the verdict was against the weight of the evidence. It must be noted that the testimony on the question of the cause of plaintiff's damage was conflicting. Plaintiff's witnesses tended to establish the fact that smoke from defendant's plant damaged their fences and metal roofs, killed their vegetation, and caused erosion. Defendant's witnesses denied that the smoke caused harm and asserted that with proper cultivation soil fertility could be maintained and erosion prevented. There was also evidence that plaintiff worked away from the farm eight hours a day from 1940 until 1942 when he went into the service. In 1942 and 1943 the farm was run by a tenant. In 1944 plaintiff returned from the service, and one year thereafter he brought this action.

Although the credibility of witnesses and the weight of the evidence are questions for the jury, a new trial should be granted if their verdict is capricious or plainly and manifestly against the weight of the evidence. Elia v. Olszewski, 1951, 368 Pa. 578, 579, 84 A.2d 188; Aaron v. Strausser, 1948, 360 Pa. 82, 85, 59 A.2d 910; Wilson v. Kallenbach, 1938, 332 Pa. 253, 256, 2 A.2d 727. If there is no conflict in the evidence or if there is no evidence on behalf of the party in whose favor a verdict is rendered and if there is credible uncontradicted testimony by witnesses in favor of the other party, the trial judge should not permit the capricious verdict to stand. Elia v. Olszewski, supra, 368 Pa. 579, 84 A.2d 188. A new trial ought not to be granted for a mere conflict of testimony as in the case at hand, however, nor even because the trial judge would arrive at a different conclusion from the same facts: Aaron v. Strausser, supra, 360 Pa. 88, 59 A.2d 910; Wilson v. Kallenbach, supra, 332 Pa. 255-256, 2 A.2d 727. It cannot be said that the verdict in the present case was capricious. It was supported by credible testimony. The members of the jury chose to believe the evidence submitted by defendant, and there is no reason to say that they should have accepted only that offered by plaintiff.

Plaintiff also complained that he did not receive an impartial trial insofar as his witness, Vincent Makovich, was concerned. When Makovich was on the witness stand, the attorney for plaintiff, Mr. Hoffman, asked him if there was anything unusual in his township 'in respect to the mill.' The record follows:

'A. (Mr. Makovich) Yes, sir, we had 22 people die in the----

'Mr. Pruger: Oh, wait just a minute. I could ask for the withdrawal of a juror for that remark, but I am not going to because I am satisfied with this jury, but this man knows better than to make a remark like that, and so does Mr. Hoffman. We are not trying a smog case here now.

'The Court: Well, we have no knowledge that Mr. Hoffman had any knowledge that the witness would make such a remark.

'Mr. Pruger: Mr. Hoffman does know because he has had this witness on before.

'The Court: The remark was entirely improper and it is now stricken from the record and the jury is instructed to disregard it. It has nothing to do with this case, and you are not to be prejudiced by it in any way. If this witness did know what he was saying, he was being extremely unfair and very improper. And if you do anything like that again, if you knowingly do it, I will hold you in contempt of court, and that is no laughing matter because I will put you in jail.'

The record does not indicate the actions of the witness, who was most impertinent to the extent of laughing in the face of the trial judge. The reprimand was necessary to preserve the authority of the court. Nothing in the record shows that the witness was paralyzed with fear, as plaintiff asserted. Plaintiff only objected three times to the questions of defendant's counsel. Nor can plaintiff complain that Mr. Makovich was not permitted to testify concerning the amount of lime necessary to bring land back to productivity, for his qualifications to hazard this opinion were not established.

Plaintiff's case was not improperly prejudiced by treatment accorded his witness, John Protz. Before he testified, the court refused defendant's side bar request to restrict the witness. It was argued by plaintiff that the witness was qualified to testify as to the condition of plaintiff's farm in general because Protz had hunted there in the fall and gone by in an automobile. Plaintiff did not attempt to restrict the witness to what he had seen at a certain time on the limited area traversed by him. His testimony as to the general condition of the farm was properly excluded. Even if the court erred in its ruling, plaintiff had his own testimony and that of Mr. Makovich before the jury as to the state of his farm. In addition, Mr. Protz and Mr. Makovich testified that other farms in the neighborhood had deteriorated. There was enough evidence for the jury to have found in plaintiff's favor, if it had so desired.

Plaintiff also asserted that he was wrongly prejudiced by the court's refusal to permit evidence of the assessed valuation of Joseph Kuma's land. Mr. Kuma, a witness for defendant, testified that he had brought his once near-barren farm into a state of high productivity as of 1945 and of the time of trial. The purpose of his testimony was to show that defendant's smoke had no relation to farm productivity. Plaintiff's attorney asked Kuma if his land was assessed at a low rate for the purpose of taxation. At the request of the court, plaintiff brought in Mr. Kritsky, a member of the Westmoreland County Assessment Board, who testified that in 1951 the county assessments in Rostraver Township (the residence of plaintiff and Kuma) averaged 27.79% of the then market value. Mr. Kritsky had no records for the year 1945. The court did not permit the witness to testify as to how market value was arrived at nor the amount of the assessment of Kuma's property. If the assessment rate were related to farm productivity, then the testimony would have been relevant to impeach Mr. Kuma. There was no attempt by plaintiff's offer to show that the rate was based upon anything other than market value and nothing to indicate that market value was related to productivity. The testimony was so far afield as to be irrelevant and properly excluded.

Plaintiff finally argued that defendant's summation to the jury was prejudicial. Yet he did not move to withdraw a juror at the time. In addition, the court charged the jury that if it or counsel misquoted or misstated any part of the testimony, it was the duty of the jury to correct the misquotation or misstatement. Any statement by the defendant's attorney that it was defendant's policy to supply lime to farmers in the area was proper since every farmer had testified to that. Plaintiff had no ground for complaint because of this.

A new trial was properly denied.

J. Thomas Hoffman, Pittsburgh, Louis Vaira, Pittsburgh, for appellant.

Chauncey Pruger and Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.

Before STERN, C. J., and STEARNE, JONES, CHIDSEY, MUSMANNO, and ARNOLD, JJ.

PER CURIAM.

The judgment is affirmed on the opinion of Judge Drew for the court en banc. The verdict for the defendant resulted from a fair trial. The case was painstakingly submitted to the jury in a thorough and impartial charge at the conclusion whereof plaintiff's counsel, upon direct inquiry from the trial judge, expressly disclaimed any cause for complaint. The strictures now passed by the appellant on the conduct of the trial are unwarranted. The one cited instance of irritation shown by the trial judge occurred when it became necessary for him to caution a witness, called by the plaintiff, against any repetition of the witness' gratuitous injection into the case of highly irrelevant and prejudicial matter and was directly provoked by the witness' insolent and contumacious attitude toward the court's justified rebuke. The ultimate exclusion of certain evidence, which the trial judge had invited plaintiff's counsel to produce, was not error. The proffered testimony was at all times irrelevant and immaterial and had no proper place in the case.

Judgment affirmed.

Musmanno, justice (dissenting).

Every judge, being human, can become angry, but every judge, being educated and conscientious, must know how to control his temper so that his wrath may not become the smoke of reason evaporating in the fires of personal controversy. Judicial equanimity is not so rare an article that it must be used parsimoniously during a trial. Particularly must a judge know how to bridle indignation and resentment in the presence of the jury because a jury is only too ready to ride any steed of emotion which the judge startles, urges, or spurs into action.

The jury regards the judge as the epitome of wisdom, the apogee of forbearance, the ultimate in propriety and the zenith of impartiality. Any fulmination, therefore, from the bench which strikes at a party litigant, witness, or lawyer may easily be interpreted by the jury as the thunderbolt of aroused justice, and, from that moment, the target of the judge's Olympian rage can not expect an uninfluenced appraisement from the jury. Most often the display of ire from the bench has no bearing at all on the issue up for adjudication but the jury is not informed that they must...