Robertson v. Madison

Clark, J.

The rule that a verdict will be set aside for unwarranted 'remarks of counsel in argument to the jury, unless it appears that the verdict was not affected thereby, is established by repeated decisions of this court too recent and numerous to need citation. Any statement or assertion of a fact material to the issue of which there is no evidence in the case is outside the limits of legitimate argument, and is sufficient cause for setting aside a verdict in favor of the party chargeable with the error unless it appears that the jury were not affected by it.

The statement of the plaintiff’s counsel, in argument, that the testimony of the witness Smith was not in accordance with his testimony on a former trial, was a material statement, unsupported . by any evidence in the case, and the error of the counsel must cost the plaintiff the loss of her verdict. Notwithstanding the with drawal of tbe statement upon the objection of the defendants, and the counsel’s apology and request to the jury to disregard it, there is nothing indicating that the effect was removed from the minds of the jury. In the colloquy that followed the objectionable statement, the plaintiff’s counsel affirmed its truth, when the defendants’ counsel insisted that he should say it was not true, by replying that he should not tell an untruth. The force of the unwarranted remark was thereby intensified, and the statement in the case that tbe jury fully understood that the remark excepted to was to be disregarded is not equivalent to a finding that the verdict was not affected by it.

Verdict set aside.

Smith, J., did not sit’: the others concurred.