Miller v. Murphy

BURROUGHS, P. J., pro tem.

This is an appeal by the defendant John Murphy from a judgment in favor of the plaintiff in the sum of $600. The complaint sets out two causes of action; the first count alleges an express contract to pay the sum of $500, the second alleges the reasonable

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value of services rendered in the same amount. The cause was tried by a jury. Upon the conclusion of the testimony for plaintiff the court granted a nonsuit as to the defendant Nora Murphy upon both counts of the complaint, and also granted a nonsuit as to the defendant John Murphy upon the second count. The trial thereupon proceeded against the last-named defendant upon the first cause of action, and judgment thereon was rendered as above stated.

Appellant’s first claim of prejudicial error is based upon alleged misconduct on the part of counsel for plaintiff. In his opening statement to the jury counsel used the following language: “ . . . and Mr. Murphy still withheld paying Mr. Miller, and we filed suit for it, and Mr. Murphy, through his attorney, demanded a jury trial, which we waived, and that is why we are here today.” The attention of the trial court was not called to this statement, nor was it assigned as error, nor any request made to instruct the jury to disregard it. Therefore, even though prejudicial, reversible error cannot be predicated thereon.

(People

v.

Babcock,

160 Cal. 537 [117 Pac. 549].)

During his argument to the jury counsel for respondent stated: “You know, one thing that strikes me all through this case is all the pitiable bluster about a little $500 case anyway. They filed suit and came in here and demanded jury trial, took up all the time of twelve people here— Mr. Appel: Just one second. I take exception to that remark and assign the making of it as misconduct, and ask the court to instruct the jury to disregard it. Mr. Hallinan: I think— The Court: That is a constitutional right, that any litigant may have a jury in a case of this character, and I don’t believe you can criticize it without criticizing the Constitution. Therefore, the court will have to prohibit you from taking up that proposition.” Again, conceding this statement constituted error, while the court did not in express language instruct the jury to disregard it, the jury could not have otherwise understood the language of the court.