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District Court of Appeal, Second District, Division 4, California.

Carl G. HANSEN, Plaintiff and Appellant, v. WARCO STEEL CORPORATION, Defendant and Respondent.

Civ. 28183.

Decided: December 02, 1965

Silver & McWilliams, Lawrence R. Booth and Arthur Sherman, Wilmington, for plaintiff and appellant. Kinkle, Rodiger, Graf & Dewberry and Donald Dewberry, Los Angeles, for defendant and respondent.

In a petition for rehearing plaintiff's attorney says that the reason he did not object to the defendant's closing argument is that, a moment earlier, the trial judge had admonished him against interrupting. This is a misreading of the record. To set the matter straight it is necessary to point out the distinction between proper and improper interruptions during argument.

While defense counsel was arguing to the jury his interpretation of the hospital chart, which was in evidence, plaintiff's attorney said: ‘Excuse me. I would like counsel to indicate where in that particular chart it is so indicated.’ This statement had no purpose or effect other than to challenge the argument which was being made by the attorney who then had the floor. It was heckling, pure and simple. The court quite properly spoke up to tell plaintiff's attorney that his comment was out of order.

On the other hand it is proper, and at times necessary, to interrupt an opponent's argument to cite counsel for misconduct and to request the court, by reason of that misconduct, to admonish counsel, admonish the jury, or declare a mistrial. Nothing which the trial court said in this case could be construed as preventing plaintiff's attorney from arising for those purposes had he believed at the time that the circumstances called for it.

The petition for rehearing is denied.

FILES, Presiding Justice.