Barry v. Galloway

Opinion by

Ross, J.,

This trespass action involves a collision between automobiles. The jury returned a verdict in favor of the défendant, the plaintiff’s motion for a new trial on the basis of alleged improper and prejudicial remarks made by counsel for tbe defendant in bis closing argument to tbe jury was refused by tbe court below, and this appeal followed.

Here we have an appeal in a case in wbicb there is no record of tbe testimony, no record of tbe remarks alleged to have been made by counsel for tbe defendant, and consequently no objection to those remarks by counsel for tbe plaintiff. Obviously, on such record in a case we cannot bold that tbe learned court below abused its discretion in refusing a new trial.

Tbe appeal is devoid of merit. We can add nothing to tbe opinion of tbe trial judge who, writing for tbe court en banc, in refusing a new trial, stated: ''. .. plaintiff moves for a new trial on tbe sole ground that tbe jury must have been prejudiced against tbe plaintiff as tbe result of a remark made by defendant’s counsel in summing up to tbe jury to tbe effect that 'the defendant is making no claim for damages to bis car because they were so slight’. This language is attributed to defendant’s counsel in an affidavit sworn to by plaintiff’s trial counsel and denied in open court by defendant’s attorney .... No testimony has been transcribed . . . . plaintiff’s trial counsel sat mute at tbe moment of tbe uttering of tbe allegedly improper remark of defendant’s counsel; nothing was noted of record by tbe official reporter, no exception was taken, and no request was made to withdraw a juror or to instruct tbe jury with respect to such alleged impropriety either at tbe moment or even later after tbe charge of tbe trial judge to tbe jury, when counsel were asked for suggestions or corrections or additions to tbe charge. See Becker v. Stern, 116 Pa. Superior Ct. 399, 176 A. 771. There is no point in considering tbe possibility or probability of prejudice in the uttering of tbe language attributed to counsel in view of tbe state of tbe record ...”

Judgment affirmed.