Jordan v. Wallace , 67 N.H. 175 ( 1891 )

It is not open to reasonable doubt that the denunciatory comments of the defendant's counsel upon the character of the plaintiff were made for the single purpose of prejudicing the plaintiff's case before the jury, and that they were calculated improperly to influence the verdict. Such comments, based upon other than the facts in the case and the conclusions legitimately deducible from the law applicable to them, are no part of the privilege of counsel, and, indeed, are not now claimed to be, even by the offending counsel himself, who, in his brief, fitly characterizes his remarks as "objectionable." It is claimed, however, that they should be regarded as excusable because they did not purport to be the statement of a fact, but only a statement of the counsel's belief. But this excuse is an aggravation rather than a palliation of the offence, for it is an admission that the derogatory assault upon the plaintiff was outside the proof, and counsel's object must therefore have been to supply the deficiencies of his client's case by travelling out of the record and seeking to humiliate and degrade the plaintiff in the eyes of the jury by an extra-professional statement of his own belief. This cannot be tolerated.

Nor was the offence atoned for when, upon objection, counsel withdrew the unwarranted statement of his belief, and asked the jury to disregard it, nor even when the court specifically instructed them to disregard it. In such cases the party in fault is "bound, after verdict in his favor, to obtain a finding that the result was not affected by his tort, and ought not to be annulled on account of it." Bullard v. Railroad, 64 N.H. 27, 33. "A verdict will be set aside for unwarranted remarks of counsel to the jury in closing, unless the presiding justice finds, as matter of fact, that the jury were not influenced thereby, or that the effect upon their minds was wholly removed by a retraction of counsel, the charge of the court, or in some other way." Ib. 27.

This finding the defendant has failed to obtain. On the contrary, the finding of the justice presiding at the trial is that he is unable to say that the verdict was not affected by the statement objected to, unless the affidavits of the jurors, to the effect that the remarks of counsel had no influence upon their minds in determining the verdict rendered, can be considered; and Mason v. Knox, 66 N.H. 545, is a direct and conclusive authority against their admissibility.

Verdict set aside.

CLARK, J., did not sit: the others concurred.