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WEITERSHAUSEN AGENCY v. MORGAN. (05/08/59)

May 8, 1959

WEITERSHAUSEN AGENCY, APPELLANT,
v.
MORGAN.



Appeal, No. 9, March T., 1959, from judgment of Court of Common Pleas of Allegheny County, July T., 1955, No. 2374, in case of Chas. R. Weitershausen Agency v. Helen G. Morgan, Judgment affirmed.

COUNSEL

John B. Nicklas, Jr., with him McCrady & Nicklas, for appellant.

Peter Cooper, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

[ 395 Pa. Page 532]

OPINION PER CURIAM

The judgment is affirmed on the opinion of President Judge SNYDER for the Court en banc.

ING OPINION BY MR. JUSTICE MUSMANNO:

A judge who unjustly censures a lawyer trying a case before him prejudices the cause of the lawyer's client in the eyes of the jury and thus works a harm which is frequently as irreparable as it is inexcusable.

In the present case the plaintiff's attorney was questioning a Mr. Hacke with regard to a telephone conversation he had had with Mrs. Morgan, the defendant, who at the time was in Beaufort, South Carolina. There was some testimony about an offer of $113,000 for some real estate, and then the following ensued: "Mr. Nicklas: Q. Then what did you do after that first

[ 395 Pa. Page 533]

    conversation about the $113,000.00? A. I immediately called my buyer and told him that he better bring his price up to the full asking price because I felt - the Judge said to strike it from the record, but I told my buyer that I thought we were being used. Q. You are not allowed to say that. The Court: The jury will disregard the statement, and you will not make that statement again, sir. You knew he was going to make the statement, Mr. Attorney, didn't you? Mr. Nicklas: Your Honor, I don't think the Court should say that to me and I resent that. I don't think that is proper for the Court to make that statement. I did not know what he was going to say. The Court: Just a moment, please. He made the statement a moment ago and you were leading up to it again and you know it shouldn't have been stated; is that correct? Mr. Nicklas: That is not correct, your Honor. The Court: You should have cautioned him. Now what do you want to do next? You should have known he was going to make that statement and you could have guided him on it."

There is nothing in the record to remotely suggest that as the judge charged, Attorney Nicklas knew that the witness was going to make the objectionable statement. Nor is there anything in the record to show that the judge was endowed with clairvoyant powers which enabled him to read the lawyer's mind. The judge's remark was critical and petulant.

After Mr. Nicklas explained he did not know what the witness would say, the judge insisted that the lawyer should have known what the witness intended to say. There was no crystal ball on the counsel table to give support to the judge's accusation that Mr. Nicklas could, by some black magic, anticipate the witness's answer. Since, therefore, a supernatural communication ...


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