Opinion
January 31, 1898.
PRESENT: Matteson, C.J., Stiness and Tillinghast, JJ.
An unjustifiable attack, by an attorney, upon a party to a cause on trial before a jury, is calculated to prejudice the minds of the jury and prevent them from weighing the evidence with that discrimination and impartiality to which such party is entitled. An attack of this kind is ground for a new trial.
ASSUMPSIT ON BOOK ACCOUNT. Heard on defendant's petition for a new trial.
Franklin P. Owen, for plaintiff.
Edward D. Bassett, Edward L. Mitchell, and Arthur P. Sumner, for defendant.
The issue in this case was whether Deslauriers was a member of the defendant firm. The jury returned a verdict for the plaintiff, thereby finding that he was. We are inclined to think that a preponderance of the evidence is against the finding. The record shows that the plaintiff's attorney, while examining one of his witnesses, counsel for Deslauriers having objected to a question put to the witness, stated in the presence of the court and jury, "I expect at some stage of the game to show, by the testimony of witnesses who are perfectly disinterested and know about these transactions, that it is an old trick of Deslauriers to do such work, to get up a company, get goods for twenty per cent. of what they are worth, and then swipe the whole business, and steal the books, c." Such an attack on a party to the cause, which, so far as the case shows, was perfectly groundless, was wholly unjustifiable and should have received, as it did, the immediate censure of the court. It was calculated to prejudice the minds of the jury against Deslauriers and to prevent them from weighing the evidence with that discrimination and impartiality to which he was entitled. It may have caused the finding against him. We are of the opinion, therefore, that a new trial should be granted.
New trial granted, and case remitted to the Common Pleas Division.