Bjork Ex Rel. Bjork v. United States Bobbin & Shuttle Co.

If the language counsel used in the statement excepted to is given any meaning of which it is fairly capable, he was *Page 404 attempting not only to justify his associate for testifying but also to justify himself for not taking the witness stand. As his associate had testified, his veracity was in issue, consequently counsel was well within his rights in making so much of the statement as asks the jury to find that it was his associate's duty to testify if he knew any facts that would aid it in its search for the truth. But that is not true as to that part of the statement in which he asks the jury to find that he was justified in not taking the stand notwithstanding he knew "the young man was right." That part of the statement could only have been made to bolster up his contention that the spreader was three or four inches from the saw at the time the accident happened. In other words, counsel was testifying rather than advocating his client's cause when he made this statement. Exception sustained: new trial. All concurred. Upon the filing of the foregoing opinion, the plaintiff moved for rehearing and argument on the motion was invited.