DocketNumber: No. 31,412.
Citation Numbers: 275 N.W. 849, 201 Minn. 255
Judges: LORING, JUSTICE.
Filed Date: 11/12/1937
Status: Precedential
Modified Date: 1/12/2023
Defendant's contention is that plaintiff's counsel should not have made statements from which it might be inferred that there were some things about the taking of the statements which were reprehensible. But all of this was provoked by the remarks of defendant's counsel, covering several pages of the record, that the taking of the statements was entirely proper and that it was misconduct for plaintiff's counsel to contend to the contrary. Illustrative remarks of defendant's counsel are:
Mr. Donnelly: "I think I have a right to read this in my argument to the jury, the Swanson case, Swanson v. Swanson,
The Court: "Did you see it?
Mr. Moonan: "I did. I think it's proper subject for argument, but it is not proper for counsel to read a part of the opinions of some court.
The Court: "The fact it is bound in a lawbook binding doesn't make it objectionable.
Mr. Moonan: "Very well. Note an exception.
Mr. Donnelly (reading): " 'Diligence in performance of duty frequently required that a lawyer charged with either the prosecution *Page 261 or defence of a case of this kind procure statements from prospective witnesses as promptly as may be. They are not to be criticized for so doing. They would be subject to criticism for doing otherwise. There is about the memory of some witnesses a kaleidoscopic and manipulable quality against which it is often impossible to take enough precaution. If the work is honestly done, it deserves nothing but commendation. We cannot condone tacitly or otherwise the action of counsel, who, after it appears that the statement of a witness has been taken with fairness, persistently endeavors to make a jury believe that there is yet something reprehensible clinging to it. Such procedure is misconduct.' That's what our supreme court of the state of Minnesota has said. So, please, ladies and gentlemen, do not be misled by any grave suggestions that have been made or may be made implying that the taking of statements of witnesses in cases of this kind is dishonest or wrongdoing. As in that case the difficulty of taking enough precaution has already been clearly shown in this case, I am sorry to say."
The case referred to by counsel is Swanson v. Swanson, reported in
1. Defendant is not entitled to assign error with respect to the argument of plaintiff's counsel because the entire matter could have been avoided by defendant's making a timely request for an instruction to eliminate from the consideration of the jury the issue of fraud in the taking of the statements. By 2 Mason Minn. St. 1927, § 9298, counsel was entitled to request instructions, have a ruling of the court allowing or disallowing them before the arguments to the jury, and read to the jury the instructions given as part of his argument. Defendant was entitled to the instruction eliminating the question of fraud under the rule of the very case of Swanson v. Swanson,
It is well stated in 3 Am. Jur. § 246, p. 27, et seq.:
"Obviously, the ends of justice are served by the avoidance of the delay and expense incident to appeals, reversals, and new trials upon grounds of objection which might have been obviated or corrected in the trial court if the question had been raised. * * * Where a party has the option to object or not, as he sees fit, the failure to exercise the option when the opportunity therefor presents itself must, in fairness to the court and to the adverse party, be held either to constitute a waiver of the right to object, or to raise an estoppel against the subsequent exercise thereof."
We applied the rule in McCarvel v. Phenix Ins. Co.
After the arguments the court granted defendant's requested instruction, which was in the language and form prepared by him and in which the court charged the jury that there was no fraud in the taking of the statements and directed it to disregard the statements and arguments of plaintiff's counsel upon which error is now predicated. The instruction embraced substantially the language which counsel had quoted from Swanson v. Swanson,supra. The court took great pains in other parts of the charge to instruct the jury to lay aside all passion, prejudice, and sympathy and calmly to consider the entire case. And in its last admonition to the jury it again singled out the argument of plaintiff's counsel and again admonished the jury not to be unduly influenced by it.
To reverse is to permit defendant to profit by his own wrong. He should have requested the instruction at the proper time and should not have injected the issue into the case. After having provoked *Page 264
counsel and engaged in such arguments, he should not be permitted, after an adverse verdict, to take advantage of the situation which he himself has created. One should not be permitted to lie in wait, to use the language in Townsend v. Jemison, 7 How. (U.S.) 706,
2. The remarks of plaintiff's counsel in themselves are not prejudicial. They amounted to no more than an appeal to the jury to do its duty, to do justice. They requested only compensatory damages. Such remarks are not prejudicial. Smith v. G. N. Ry. Co.
"The reason for this rule has been very clearly stated in a recent decision as follows: 'It is the presumption of law that jurors are intelligent, honest, fearless and just. Courts are not justified in assuming that the mind of the jury is of such plastic and unreliable material as to at any unjustified word of debate neglect the instructructoins *Page 265
abandon the evidence and disregard their oaths.' " Devine v. Chicago City Ry. Co.
3. Defendant cannot complain. He received the instructions and the relief which he requested. He was not entitled to anything more. Curran v. C. G. W. R. Co.
4. The duty to prevent improper influences from trials is one resting upon "both lawyers and courts." Prescott v. Swanson,
In my judgment, the court below made the right disposition of this case. There should be an affirmance.
MR. CHIEF JUSTICE GALLAGHER took no part in the consideration or decision of this case. *Page 266