Appeal, No. 128, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1950, No. 1476, in case of James Knight et ux. v. County of Allegheny. Judgment reversed.
John A. Metz, Jr., with him Metz & Metz, for appellants.
John W. Mamula, Assistant County Solicitor, with him Nathaniel K. Beck, County Solicitor, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
This is an appeal from the Court of Common Pleas of Allegheny County involving eminent domain proceedings. The jury returned a verdict in an amount less than that awarded by the Board of Viewers. The plaintiffs contend on appeal that the small verdict of the jury was influenced by the improper remarks of counsel for the County of Allegheny. According to the attorney for the plaintiff-appellants, the appellee's attorney, in his summation to the jury, said that the jury should return a verdict that was "fair to me and him and you." The record from this point reads:
"Mr. Sniderman: 'If the Court please, that last remark that was made by Mr. Mamula to the Jury in his
closing address, as to the taxpayers, "fair to me and him and you," is improper and prejudicial. It is an appeal to prejudice and it is irrelevant and it is likely to have a prejudicial effect on the verdict. I just want to have that remark placed in the record and the circumstances under which it has been made, and I ask for the withdrawal of a juror.'
"Mr. Mamula: 'I might state I have tried many cases with Mr. Sniderman and that this objection has been raised on one previous occasion and was disallowed as not being prejudicial, but being a mere statement of a positive fact.'
"The Court: 'I will refuse the motion to withdraw a juror. The Jury will of course recognize that the County of Allegheny is a municipal body for the benefit of everyone. I mean that is, I think, a mere statement of fact and I am ...