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MARCUS v. PITTSBURGH. (09/15/64)

September 15, 1964

MARCUS, APPELLANT,
v.
PITTSBURGH.



Appeal, No. 24, March T., 1963, from judgment of Court of Common Pleas of Allegheny County, April T., 1957, No. 451, in case of George Marcus v. City of Pittsburgh. Judgment reversed.

COUNSEL

Ernest G. Nassar, Jr., with him Ernest G. Nassar, for appellant.

Robert Engel, Assistant City Solicitor, with him David W. Craig, City Solicitor, for City of Pittsburgh, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 415 Pa. Page 253]

OPINION BY MR. JUSTICE MUSMANNO

George Marcus sued the City of Pittsburgh for personal injuries resulting from a collision between the

[ 415 Pa. Page 254]

    automobile in which he was riding and a truck belonging to the City. The City in turn filed a counterclaim against Marcus. The jury returned a verdict in favor of the defendants in both instances. The plaintiff has appealed.

During the trial plaintiff's counsel, Ernest G. Nassar, called to the witness stand Richard Obringer, a law school graduate employed in the office of Mr. Nassar who had been present when the defendant's doctor examined the plaintiff. Obringer testified to what he had observed at that examination. In rebuttal, defendant's counsel called Mr. Nassar, plaintiff's attorney, to the witness stand and cross-examined him on Obringer's employment status in Nassar's office.

The purpose of this cross-examination supposedly was to show that Obringer was an interested witness. The cross-examination, however like a kite that gets into cross-currents, went off in many directions. City counsel asked Nassar if he (Nassar) represented the United Steel Workers Union, whether the Attorney Smith associated with Nassar also represented the Steel Workers Union, how long Nassar had been at the bar, how much he paid Obringer, whether Nassar knew of any other case where an attorney sent someone else to observe a physical examination with the observer later testifying "against the word of the examining physician." The examination became an inquisition on matters wholly outside the scope of cross-examination and probably prejudiced the rights of the plaintiff who, in this battle between attorneys, became the proverbial innocent bystander on the receiving end of the flying adjectival bricks.

The phrase employed by City counsel, "against the word of the examining physician" suggested to the jury that the testimony of a physician can never be questioned. Of course, it is fundamental that any witness' testimony, regardless ...


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