Appeal, No. 30, March T., 1959, from order of Court of Common Pleas of Clarion County, Feb. T., 1954, No. 29, in case of Clarence Garris v. William McClain. Order, as amended, affirmed; reargument refused May 20, 1960.
H. Ray Pope, Jr., for appellant.
Chester H. Byerly, and Robert B. Filson, for appellee, were not heard.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
At the trial of this action in trespass for damages for personal injuries suffered by the plaintiff in an automobile accident, the court withdrew a juror and continued the case on the defendant's motion because of an allegedly prejudicial question by plaintiff's counsel in his cross-examination of a witness for the defendant. The plaintiff has appealed the order of continuance.
The appeal projects a rather anomalous procedural situation. Obviously, the trial terminated with the continuance and could not possibly be revived with a procedendo. The case can be retried only upon a venire. Moreover, even if the order of continuance were reversed, the appellant would get no more substantial relief than what he already has, namely, a right to a new trial. However, although the order did not put the plaintiff entirely out of court and is interlocutory, it also imposed costs on the plaintiff and is, therefore,
appealable; and the trial judge's certificate of amount in controversy places the jurisdiction here.
If the court below erred in withdrawing a juror, as the appellant contends, the error, if uncorrected, will improperly serve as a precedent at the retrial and unjustly restrict the plaintiff in his cross-examination of the defendant's witness. It is important, therefore, that we define the permissible scope of the plaintiff's cross-examination of the defendant's witness at the retrial, should the same witness be called by the defendant for the same purpose as before. Possibly we may thus aid in bringing about a conclusive termination of this litigation without further unnecessary delay. It has already been pending in the court below far too long.
The complaint was filed on December 31, 1953. The first trial was had in June of 1954 and resulted in a jury's verdict for the plaintiff for $15,000. The defendant filed motions for judgment n.o.v. and for a new trial. These motions, although praecipes to place them on the argument list were filed seven times between August 24, 1954, and December 13, 1957, were never argued before the court below. No transcript of the testimony at trial was ever filed and, in time, became completely unavailable due to the incapacity of the court reporter, who had taken the notes of testimony at trial. Nevertheless, without argument of the motions, the court entered an order on January 30, 1958, dismissing the motion for judgment n.o.v. and granting a new trial. In the meantime, counsel for the plaintiff had died and counsel for the defendant had ceased practicing law shortly after the trial had been concluded.
Following the entry of the new trial order, the case again came on for trial on September 8, 1958, a lapse of four and a quarter years since the first trial. The second trial was proceeded with to the point where ...