#### HANSEN, Respondent, v. BOOTS, Appellant.

(168 N. W. 798).

(File No. 4225.

Opinion filed September 3, 1918.

Rehearing denied November 4, 1918.)

1. Trials — Review—Misconduct of Counsel — -Personal Assault, Recovery of Damages' — Persistent Irrelevant Cross-examination of Defendant Re Abuse of Plaintiff Tenant, Incompetency of— 1 Prejudice — Counsel’s Explanatory Statement, as Evidence' of Intent to Unduly Impress Jury.

Defendant,, in. a suit for damages .resulting from injury through personal assault upon plaintiff by pistol shot, -plaintiff being défendant’s land tenant, w'as persistently arid repeatedly cross-examined by plaintiff’s counsel -by being interrogated as *97to whether he had not, while ¡plaintiff was in possession of his farm as tenant, broken plaintiff’s leg, then took steps to get him off the farm, assaulted him while sick in bed and, as to whether, while so in bed and while defendant was in attitude of putting him out of the house, he, plaintiff did not draw a shot gun from behind the bed and told defendant to get out, and as to whether defendant had not had trouble with -other tenants “down there;” all of said questions, save the one inquiring whether defendant did not assault plaintiff while sick in bed, having been sustained, said one question having been overruled. Helcl, that none of the facts — if facts — so inquired for were competent for any purpose under the issue; with which rules of evidence plaintiff’s counsel, a lawyer of year’s experience, is presumed to have been familiar; that the evident purpose of asking these questions was to get before the jury matters immaterial and collateral to the issues; which course of conduct is in law misconduct; nor is the contention that defendant was not thereby prejudiced, tenable. Held, further, that the verdict below was influenced by such line of cross-examination; each succeeding question having assumed the -proceeding one had -been answered favorably to plaintiff, thus probably giving jury the impression that the facts assumed actually existed, and that the reason why defendant objected thereto was that he was trying to keep such facts from the jury; the intent to leave such impression being apparent from said cross-examination, and from counsel’s declaration that “this is something he [defendant] did 'himself, it is not something that he he-ard of someone else doing, * * * to show his disposition, his character, and that at this time he did make an assault;” which statement could hardly help producing prejudice of jury against defendant, especially if any jurors had respect for counsel’s word.

2. Trials — Misconduct of Counsel — Probable Influence of Jury, Effect, Re Granting New Tidal.

It is -not every mis-statement or act of misconduct upon the part of counsel during the trial, that will warrant granting a new trial; hut a verdict should be set aside where it was probably influenced by such conduct.

*S.*Appeals — Error—Misconduct of Counsel — New Trial, Abuse of Discretion — Rule.

While it is the general rule that, whether the conduct of counsel was such as to warrant granting new trial, is a matter of judicial discretion with trial court, and that, that court having refused a new trial, Supreme Court should not interfere, yet, where it is apparent that trial court’s discretion has been abused, Supreme Court should not hesitate to interfere.

*984. Appeals — Error—Damages for Personal Assault, Recovery— Misconduct of Counsel — Persistent Irrelevant Cross-examination of Defendant to Impress Jury — Trial Judge’s Duty to Reprimand Counsel, Admonish to Desist — Impliedly Allowing Counsel to Proceed, Effect.

Where, in. a suit for damages for personal assault, plaintiff’s counsel persistently cross-examined defendant upon matters irrelevant to the issue with the evident intent of influencing jury to plaintiff’s prejudice, held, that such counsel was not the sole offender; it was thei duty of trial judgei to reprimand him, even without objection from opposing counsel, for repetition of the same question after it was held immaterial, and even more so to reprimand counsel, or adopt other means within its powár to .prevent him from pursuing such a line of questioning; and, no. reprimand having been administered, if indeed trial judge did not encourage counsel in doing what he did, and, in ruling upon defendant's objection to a question, having stated; “Probably you had better he a little more careful because whatever is done will have to he all undone if you step over the line” — in effect, telling counsel he might proceed, so far as he pleased, if willing to take his .chances on what Supreme Court might do on appeal; that it was trial judge's duty to have admonished counsel to desist and, if necessary, to have enforced the admonition.

5. Trials — Misconduct of Counsel — Persistent Irrelevant Cross-examination of Defendant, Assault Case, Under Adverse Rulings, as Evidence of Defying Court and Counsel — Prejudice.

Where the record, in a suit for damages for personal assault, showed that defendant’s counsel persistently pursued a line if irrelevant interrogation over objection of opposing counsel and the adverse court rulings, the conclusion is irresistable that such -was not due to error of judgment, hut was done pursuant to a determination to present matters involved in the interrogations to the jury, in spite of court and counsel, which conduct should neither he tolerated or excused by trial court; and no litigant should be permitted to profit thereby.

6. Appeals — Error—Excessive Verdict, as Evidence of Undue Influence of Jury Through Misconduct of Counsel.

Where the amount of the verdict is so out of proportion to the injury inflicted upon defendant by plaintiff in a suit for damages for personal assault, that the conclusion that jury was materially influenced by immaterial matter so injected into the case, is irresistable, for that reason alone, judgment should he reversed.

Appeal from Circuit Court, Beadle County. Hon. Arva E. Tayror, Judge.

*99Action toy John C. Hansen, against John H. Boots, to recover damages for personal assault. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Affirmed.

*Gardner &*Churchill, and O. *S. Hagen,*for Appellant.

*B. B. McCtaskey,*and *A. W. Wilmarth,*for Respondent.

(i) To point one of the opinion, Appellant cited:

Sec. 255, Code Civ. Proc.; Lindsay v. Pettigrew, 3 ,S. D. 199; D.audel v. Wolf, 30 -S. D. 409 (418); Shields v. Rowland (Ky.) 151 S. W. 408; 'Cleveland- Ry. Co. v. Pritschau (O.) 69 N. E. 663, 100 Am. St. R. 682; Raefeld't v. Koenig (Wis.) 140 N. W. 56; Louisville v. Payne (Ky.) 118 S. W. 352; Barton v. Bruley (Wis.) 96 N. W. 815; Atherton-v. Defreeze (Mich.) 88 N. W. 886; State v. LaMont, 23 'S;. D. 174; People v. Wells (iCal.) 34 Pac. 1078; Hood v. Ry. 'Co. (Ia.) N. W, 261.

Respondent cited:

Note to Cleveland and Plainsville and Eastern Ry. Co. v. Pritschau, 69 Oh. St. 438, 100 Am. 'S't. Rp-ts. 689; Sears v. Seattle Consolidated R. R. Co., (Wash.) 33 Pac. 389; Noth-enibeck v. Mr. Pac. Ry. Co., 38 S>. W. 723; Provost v. Brueck, 67 N. W. Rep. 114; People v. Gordon, (Cal.) 37 Pac. 534; City of Chicago v. Leseth, 32 N. E. 428.

POLLEN, J.

Plaintiff, claiming to have Ibeen injured iby a -pistol shot fired by defendant, brought this action against defendant for the recovery icf 'damages 'alleged to have resulted' from such injury. Verdict -and judgment were for plain-tiff, and defendant appeals.

Appellant assigns a number of errors of law- committed by 'the trial court; tout, for a reversal of the judgment, he relies mainly upon alleged misconduct of respondent’s counsel 'during the trial. The encounter that resulted in the shooting occurred on a farm-owned by appellant. Respondent had had a lease of said farm and was still living 'thereon. Appellant was anxious ho have respondent vacate said farm in order to make room for another tenant. The testimony of appellant and respondent. relative to just What occurred at the time of -the shooting is.very conflicting.

While appellant was on .the witness stand in his own behalf, respondent’s counsel, presumably for the purpose of '-showing that it was -appellant’s habit to mistreat his- tenants-, asked the following ■series of questions, -that appellant now claims constitute, such mis*100conduct as to warrant :a reversal of the judgment (the subject of the inquiry was a. man by the name of Kirk) :

“Q. He had' his leg broke while he was on the place 'didn’t he? (Objected to as immaterial and not proper cross-examination'. Objection sustained by the court.) Q. And, after he had his leg •broke and couldn’t work any longer, you took steps at once to- get him off, didn’t you? (Objected to as immaterial and not proper •cross-examination, and counsel for defendant requested the court to instruct counsel for plaintiff to discontinue this line of examination. Sustained.) Q. While he .was sick in bed, you went down there and assaulted him while 'he was sick in bed and put him out of the house? (This was objected 'to as not proper cross-examination and immaterial; that it called for the opinion and conclusion of the witness; that there was no evidence in the record of any such transaction; and that none of such matters had been communicated' to the plaintiff or known by him at the time of the alleged assault. Overruled.) A. No, sir. Q. And -while he was upon the bed and you were in'the attitude of putting him out of the house, didn’t he draw a shotgun from behind- the bed and tell you to get out, or in substance that? (Same objection. 'Sustained.) Q. You did force him out of the place at that time, while his leg was broken, didn’t you? ('Same objection; same ruling.) Q. Then you had trouble with other tenants-down there, -didn’t you? (Same objection; same ruling.) Q. Mr. Boots, this man Fred Kirk you had- hired for a year when he first went down there, had you not? (-Same objection; same ruling.) Q. I wish to ask him relative to- this assault he made; this is something he did himself; it is not something that he heard of anybody else- doing; something he did himself, to show -his 'disposition, his character, and -that at this time he did make an assault— (Interrupted by objection of counsel for appellant.) Q. While he was lying on the couch w-ith the broken leg, at yo-ur solicitation and in y-o-ur -presence didn’t your wife strike him twice?”

[1] There is -considerable -more along this same line, but the foregoing, is sufficient to show the nature of -the course pursued by respondent’s counsel throughout the cross-examination of' defendant. None of these facts- — -if they are 'facts — were -competent for any purpose in this case. With these rules of evidence, respondent's- counsel, with his many years of experience as a -practitioner, *101is presumed to have 'been fa-miliar. Therefore it necessarily follotws that -dcunsel’s purpose in asking these questions was- to- get ibefore the jury matters that were immaterial and wholly collateral to- any of the issues in- the case. This course of conduct pursued in the trial of a case is generally 'held to be misconduct; nor -does counsel seriously question the impropriety of his -conduct, but contends that appellant was not prejudiced thereby and that said conduct -does not warrant a reversal of the judgment.

[2] It is not every -misstatement or act of misconduct on 'the part of counsel -during the trial of a case that w-ill warrant the granting of a new trial. Gilbert et al. v. Michigan Cent. R. Co., 116 Mich. 610, 74 N. W. 1010; Chicago & A. R. Co. v. Fietsam, 123 Ill. 518, 15 N. E. 169. But tírese -cases recognize the fact that a verdict should be set aside where such verdict -was probably influenced by such conduct. City of Chicago v. Reseth, 142 Ill. 642, 32 N. E. 428.

In this -case we believe the verdict w.as influenced- by the line of cross-examination pursued iby -counsel for respondent. It 'will be noted that each succeeding question assumes that the preceding question had been answered, and answered favorably to plaintiff. Th-e probable result of putting these- questions in this -manner wast-o give the jury the impression that the facts assumed actually existed, and- that the reason why appellant objected to such- -questions 'being answered was that he was trying, to keep such facts from the jury. That counsel for respondent was trying to leave this impression with the jury is apparent, not only from, the manner of putting the questions1, but from the unqualified' declaration .made by -counsel, to-wit:

“I wish to- -ask him relative to this assault he made; this is something he -did himself; it is- not something that he heard of anybody else -doing; something he -did himself, .to sho-w his disposition, his character, and that at this time he did make an assault.”

Such a statement as this could hardly -help .producing a prejudice in the minds of the jury against the appellant, and especially so if any -of the individual jurors had -any respect for -counsel’s word.

[3] It is further alleged Iby respondent that whether the -conduct of -counsel was such as to warrant the granting of a new trial-was a matter of judicial discretion with the trial -court, and that, *102that -court having refused to grant a new trial, this court should not interfere. Of course, -this is- the general rule; but, where it is apparent that the trial court’s discretion has been -abused, this- court shoul-d- not -hesitate to interfere. Lindsay v. Pettigrew, 3 S. D. 199, 52 N. W. 873, and in State v. Kaufmann, 22 S. D. 433, 118 N. W. 337, this -c-o-urt, quoting, in part, from- Lindsay v. Pettigrew, said-:

“ 'We recognize the rule that the -conduct of- the -trial and the line o-f argument counsel are permitted' -to -pursue rests largely in the discretion -o-f- the trial -court; that -the granting or refusing of a new trial for irregularities -of parties- or attorneys-, -or the misconduct o-f the attorney in his- argument, rests largely in the -discretion -of- su-ch -court. W-e further recognize the fact that this court will not reverse the decision of the court -below on a motion for a new trial, where, as in this -case, the' facts are fully within- the knowledge of the -court, except in a case where this discretion is plainly misused.’ But this is such -a case. To -sustain this conviction, u-p-on the record before us, w-o-uld mean the approval o-f methods of procedure inevitably subversive of the most -sacred -constitutional rights; it would encourage — where no encouragement is needed — disregard of universally recognized professional obligations, -an-d ultimately render the administration -of justice in this jurisdiction ;a- disgrace to American- -civilization.”

And in Daudel v. Wolf, 30 S. D. 409, 138 N. W. 814, this court said:

“For counsel to persistently, over and -over again, -propound the same question to a witness that has -already been once or more times fairly answered, is such misconduct that the trial court should reprimand, even without objection from -opposing counsel. It is certainly much- more flagrant misconduct after an objection has been made thereto- an-d: sustained by the court, and1 especially -so- when the court has dearly stated to counsel that the question should not again be repeated because it was- immaterial.”

[4] But oou-nsdi for -respondent was not -the sole offender in this case. If it is the -duty of a trial judge to reprimand counsel, even without -objection from -opposing counsel, fo-r a repetition of the same -question after it has- been held to be immaterial, how much- more was it -the duty of the trial judge, in- this case to- reprimand- -counsel of to -adopt -other means within his power to- pre*103vent counsel from .pursuing ai line of questioning when the very subject of the inquiry was known to him to be immaterial? Yet no reprimand, was administered, if indeed the trial judge did not encourage counsel for respondent in doing just what he did' do.

In ruling upon appellant’s objection to one of the above-quoted questions, the judge said:

“If that .objection is- made, probably you had better be a little more careful, because whatever is' done will 'have to be all undone, if you step over the line. The objection to the last question is1 sustained.”

In effect, telling .counsel that he might go ahead, so far as he pleased, if he were willing to take 'his chances on what this court might do, if the case ever reached here. It was the duty of the trial judge to have admonished counsel to desist from' the course he was pursuing, and, if necessary, to have seen to it that such admonition wa9 respected.

[5] It would not be practical, even if profitable, to review the numerous cases wherein the question involved in this case has been considered and passed upon by the various courts. What appears to us to be the correct rule to apply in such cases is tersely stated by the Court of Appeals of Kentucky in Louisville & N. R. Co. v. Payne, 133 Ky. 539, 118 S. W. 352, 19 Ann. Cas. 294. It is there said:

“Where the record shows that an attorney persistently and dogmatically pursues .a line of interrogation over the objection df opposing counsel and the adverse ruling of the court to the extent here shown, the conclusion is irresistible that such was not due to error of judgment, but in pursuance of a determination to present the matters about which the questions are asked .to the jury in spite of court and counsel. Such conduct should neither be tolerated nor excused by the trial court, and no litigant should be permitted to profit by such practice.”

This rule is fully established by the following cases: Bergman v. Solomon, 143 Ky. 581, 136 S. W. 1010; Shields’ Adm’r v. Rowland, 151 Ky. 136, 151 S. W. 408; McClendon et al. v. Bank, 188 Mo. App. 417, 174 S. W. 203; Fell v. Kimble (Tex. Civ. App.) 154 S. W. 1070; Jordan v. Massey (Tex. Civ. App.) 134 S. W. 804; Cleveland Ry. Co. v. Pritschau, 69 Ohio St. 438, 69 N. E. 663, 100 Am. St. Rep. 682; Raefeldt v. Koenig, 152 Wis. 459, 140 N. W. *10456; Barton v. Bruley, 119 Wis. 326, 96 N. W. 814; Coan v. Brownstown Twp., 126 Mich. 626, 86 N. W. 130; Phillips v. United States Ben. Soc. of Saginaw, 120 Mich. 142, 79 N. W. 1; Atchison v. McKinnie et al., 233 Ill. 106, 84 N. E. 208.

The amount of the verdict in this case is so out of proportion to the injury inflicted upon respondent toy appellant that the conclusion that the jury was materially influenced by the immaterial matter injected into the ease by respondent’s counsel is irresistible, and, for that reason alone, the judgment should toe reversed.

The judgment and order appealed from are reversed.