Hulburd v. Worthington

SPENCE, J.

Plaintiff sought damages for personal injuries sustained when she was struck by the automobile of defendant. The jury returned its verdict in favor of plaintiff in the sum of $10,000 and judgment on said verdict was entered. Defendant appeals from said judgment.

[478]

The sole contention of defendant on this appeal is that the judgment should be reversed because of the prejudicial misconduct of counsel for plaintiff. Plaintiff makes no serious attempt to deny the charge of misconduct but earnestly contends that the misconduct was not prejudicial. Under these circumstances we will refer only briefly to the nature of the alleged misconduct.

On the voir dire examination of the jurors, counsel for plaintiff, without any apparent provocation or justification, volunteered the statement before the prospective jurors that “Mr. Hoge is very clever and very skilled in trying to mislead a jury ...” Again on the voir dire examination, counsel for plaintiff made certain statements in an apparent attempt to rebuke the members of a jury, which had been selected from the same panel and which had served in another case in which case counsel for defendant had represented another defendant, for bringing in a verdict in favor of the plaintiff in that case for only nominal damages. In the discussion between court and counsel regarding this matter, the following occurred, “The Court. Do you know anything about that case? Mr. Hildebrand. Not a thing. . . . The Court. Mr. Hildebrand, you shouldn’t criticize the jury when you don’t know anything about the case. Mr. Hildebrand. I know it. ’ ’ During the examination of the witnesses, counsel for plaintiff repeatedly attempted, despite the trial court’s action in sustaining objections, to convey the impression to the jury through objectionable questions that a police officer had issued a citation to the defendant for violating the law at the time of the accident. This subject was pursued, on the cross-examination of defendant, to the point where counsel for plaintiff asked the defendant: “ Q. And you paid the fine too?” Timely objections were made and sustained and the trial court immediately admonished the jury. However, defendant’s motion to declare a mistrial was denied.

It requires no citation of authority to support the conclusion that counsel for plaintiff was guilty of inexcusable misconduct in making the above mentioned statements and in asking the improper questions after objections thereto had been repeatedly sustained. We will refer only to the case of