69 Pa. Super. 331 | Pa. Super. Ct. | 1918
Opinion by
This action was for the recovery of damages for the diversion of a stream to the detriment of land owned by the plaintiff below the location at which the water was taken. The first four assignments relate to the instruction of the court on the subject of punitive damages. The defendant is a corporation having the right of eminent domain. It did not take the water in the exercise of that right but without notice to the plain
The fifth and sixth assignments may be considered together. They relate to the testimony of two of the plaintiff’s witnesses, Lambert Strauck and William Allison. The court was requested by the defendant to instruct the jury to disregard the testimony of each of these witnesses; the first because he gave what the learned coun
In the seventh assignment the complaint is made that the court did not withdraw a juror because of improper remarks of the plaintiff’s counsel. We have examined the language set forth in the affidavit with care but are not convinced that it sustains the objection presented. The action involved the conduct of the defendant company. It proceeded concededly without right in taking the water from the stream. Lower riparian owners were not consulted. Their rights with respect to the water were not regarded. It was within the power of the defendant to have proceeded in accordance with law under its charter and thereby to have secured a title,to the water which it desired. It chose the other method. It therefore invited some, criticism of its action and while the disposition of the courts has been to restrain violent and inflammatory attacks by counsel on parties and witnesses without due regard to the evidence it has not been the intention to prescribe the exact terms in which the conduct of parties or witnesses should be characterized and thereby to confine within the narrowest limits the rhetorical liberty of counsel. On the undisputed facts in the case we are of the opinion the plaintiff’s counsel did not transgress the boundaries of lawful expression in asking the jury to render adequate compensation to the plaintiff for the wrong alleged to have been done him.
The assignments are overruled and the judgment affirmed.