Opinion
Nos. 34,670, 34,671, 34,672.
February 18, 1949.
Trial — prejudicial remarks of counsel — failure to take exception — duty of trial court to take action on own motion.
1. Though exceptions to prejudicial remarks to the jury were neither taken at the time they were made nor at the close of counsel's argument, as permitted by the district court rule, this court regards those here under consideration as so calculated to arouse prejudice and passion that it was the trial court's duty to take action thereon on its own motion.
Appeal and error — extent of review — orders denying judgment notwithstanding — issues requiring new trial.
2. This court refrains from passing upon the orders denying motions for judgment notwithstanding the verdicts, for the reason that the issues of fact are such that on a new trial further evidence may affect the question of recovery on the merits.
Action in the district court for Hennepin county to recover for injuries sustained by plaintiff while inspecting cars of grain in the yards of defendant Chicago, St. Paul, Minneapolis Omaha Railway Company in the course of his work as a state grain sampler. The case was tried before William A. Anderson, Judge, and a jury. Separate verdicts of $45,000 each were returned by the jury for plaintiff against the defendants Chicago North Western Railway Company, L.E. Peterson, and C.M. Potter, d. b. a. Potter Grain and Fuel Company, and by direction of the court verdicts were returned for the defendants Hoover Grain Company and the Omaha railway company. Upon alternative motions for judgment or a new trial by defendants North Western railway company, L.E. Peterson, and C.M. Potter, the court denied the motions for judgment, but granted a new trial unless plaintiff should consent to a reduction of the verdicts to $35,000, in which case the motions for new trial would be denied. Plaintiff consented to the reduction, and the three defendants named appealed from the orders denying their motions. Reversed.
Alfred E. Rietz, Lowell Hastings, and Warren Newcome, for appellants Chicago North Western Railway Company and L.E. Peterson.
Herbert F. Horner and Stanley V. Shanedling, for appellant C.M. Potter, d. b. a. Potter Grain and Fuel Company.
Fred A. Ossanna, Irving H. Green, and Charles T. Hvass, for respondent.
In this action for personal injuries, separate verdicts of $45,000 each were rendered in favor of plaintiff against the defendants Chicago North Western Railway Company, L.E. Peterson, and C.M. Potter, individually and as sole trader as the Potter Grain and Fuel Company. The case is here on separate appeals denying their motions for judgment notwithstanding the verdicts or a new trial.
Error is assigned on misconduct of counsel for plaintiff in his argument to the jury. Since this court takes the view that a new trial must be granted on that ground, we refrain from passing upon the motions for judgment for the reason that the issues of fact are such that there may be further evidence introduced on another trial which may affect the question of recovery on the merits. 3 Dunnell, Dig. Supp. § 5082, and cases cited under note 8.
Exceptions to counsel's remarks to the jury were neither taken at the time they were made nor at the close of his argument, as permitted by the district court rule, but only after the court had charged the jury. However, we regard the argument as so prejudicial and so calculated to excite prejudice and passion that the trial court, of its own motion, should have taken action upon it. The accusations of perjury against plaintiff's witnesses by defendants' counsel were not sufficient provocation to justify the misconduct. The court did not take action. Consequently there must be a new trial.
Orders reversed.
I dissent upon the authority of Eilola v. Oliver I. Min. Co. 201 Minn. 77, 275 N.W. 408.
MR. JUSTICE THOMAS GALLAGHER took no part in the consideration or decision of this case.