Maybin v. Webster

Davis, J. On the first trial of this case, in the Dear-born Circuit Court, appellee recovered judgment for six thousand dollars, which, on appeal to the Supreme Court, was reversed. Mabin v. Webster, 129 Ind. 430. The venue of the cause was then changed to the Switzerland Circuit Court, and resulted in judgment in favor of appellee for three thousand dollars. The errors assigned by appellant in this court are: - “1st. Because said Switzerland Circuit Court erred in overruling the appellant’s motion for a new trial of said cause. “2d. Because said court erred in overruling the motion of the appellant to suppress parts of the deposition of Persis C. Chapin, taken on behalf of the appellee, read in evidence on the trial of said cause.” The ruling of the court on a motion to suppress a deposition is cause for a new trial. Jeffersonville, etc., R. R. Co. v. Riley, 39 Ind. 568. It is well settled that rulings which properly constitute a cause for a new trial can not be independently assigned as error in this court. Elliott’s App. Proced., sections. 347, 351 [549] The second error assigned in this case presents no question for our consideration. The first question discussed by counsel for appellant relates to the admission of the testimony of Mrs. McConnel, a witness on behalf of appellee. This witness, over objection of appellant, testified that on one occasion she called to see appellee when she was suffering from nervous prostration, and that appellee then communicated to her certain statements which the witness, at her request, communicated to appellant. The questions asked were proper. The evidence sought to be elicited was pertinent. The answers of the witnesses may, in some respects, have been more comprehensive than the questions, but as the motion made by counsel for appellant to strike out parts of her testimony was sustained, appellant is in no position to complain. The next question relates to the ruling of the court in refusing to strike out parts of the deposition of Persis Chapin. The fact that, on cross-examination, it was made to appear that the witness did not have a positive and distinct personal recollection as to some of the matters testified to by him in chief, and that the answers so made to questions propounded to him in chief may have been based, in part at least, on hearsay, did not constitute a sufficient reason for striking out his answers to such questions. The credibility of the witness, and the weight of his evidence as analyzed and dissected by the cross-examination, were proper questions for the consideration of the jury. There was no error in this ruling. Complaint is also made of instructions given and refused, but the objections urged are general rather than specific. We have, however, carefully read all the instructions asked, given, modified, or refused, in the light of the argument of counsel in relation thereto. The in [550] structions are numerous and lengthy, and we can not undertake to set them out in this opinion. When considered together, as an entirety, the instructions given fully and correctly state the law applicable to the case. So far as we have been able to see, each of the instructions, standing alone, accurately states the law on the question to which such instruction refers. As the instructions impress us, appellant has not in any respect been prejudiced thereby. The attention of the jury was explicitly directed to the matters which it was proper for them to consider in mitigation of damages. There was no error in either the giving or refusing of instructions. A number of interrogatories which, on examination, we find were in all respects proper in both substance and form, were submitted to the jury by the court at the request of the respective parties. The answers returned thereto seem to have been responsive, full, and clear. The appellant tendered one interrogatory in answer to which the jury were asked to state the amount allowed by them in mitigation of damages for the alleged breach of contract, on account of the fact that he was afflicted with epilepsy. The court struck out and refused to submit so much thereof as sought to have the jury fix the amount they so considered in mitigation. The jury answered that such affliction was considered by them in mitigation in determining the amount of the verdict. This was all that was required on that branch of the case. Matters in mitigation in this class of cases can not be considered as a set-off or counterclaim. The next question urged by counsel for appellant is based on the alleged misconduct of one of the attorneys for appellee in his argument to the jury, which is set out in the bill of exceptions as follows: “George M. Roberts, Esq., was addressing the jury on behalf of the plaintiff, when said attorney, so acting, [551] made the following statement in argument to the jury, to wit: ‘On rebuttal, we asked Mrs. Isdell to state whether her sister, Mary 0. Webster, had a watch and bracelets in 1879, when she went to live with her. They objected to that; they were afraid to have her answer that question; they knew she would say her sister had the watch and bracelets in 1879, and that she did not get them afterwards.’ To which the defendant then and there objected and excepted, and said counsel did not. .withdraw the statement, and thereupon, after objection, made by counsel for the defendant, the court' stated as-follows, to wit: ‘Gentlemen of the jury — The statement-made by counsel in reference to what other counsel may have known, and what the witness may have sworn to, if permitted to testify, is not proper matter for you to consider, and is ordered stricken out by the court.’ And still counsel for the plaintiff did not in any manner withdraw said statement. And the defendant then and there, at the proper time, and properly still objected and excepted to said statement of counsel, and the counsel proceeded with his argument of the cause.” We have quoted in full all that appears in the bill of exceptions on this subject. When the alleged improper statement was made, counsel for appellant objected and excepted thereto, and thereupon the court clearly and unequivocably instructed the jury to not consider such statement. Counsel for appellant then renewed the objection and exception to the statement, but. did not move the court to set aside the jury or take any other steps. The rule applicable to the question here presented is, in our opinion, correctly stated by Judge Coffey in Grubb v. State, 117 Ind. 277 (283): ‘‘Where counsel is guilty of misconduct, and the opposing party, at the time, objects, and the court, upon being asked to do so, neglects or refuses to take action in the matter., or to repair the [552] injury to the satisfaction of the injured party, he can except and bring the question to this court. But, in such cases, if the court does all in its power to relieve the party injured from the consequences of such misconduct, there is no action of the court to which an exception can be taken, and consequently nothing to be reviewed in this court. In such cases, if the injured party thinks that the injury is of such a character that it can not be repaired by any action of the court, he should move to set aside the jury, or take such other steps as he may think will secure to him a fair and impartial trial. If he fails to do this, and permits the case to proceed to final determination, he must be deemed to have waived all questions arising'out of such misconduct. Coleman v. State, 111 Ind. 563; Henning v. State, 106 Ind. 386. In this case, as the court did all that could be done, and, indeed, all it was asked by appellant to do, it must be considered by this court that all error on account of the misconduct of counsel for the State has been waived.” Filed Nov. 2, 1893. Without entering upon or deciding the question as to the character and effect of the statement which constitutes the alleged 'misconduct of counsel in this case, it will suffice to say that, in any event, on the authority cited, such statement can not be regarded as reversible error. See, also, Indianapolis Journal Newspaper Co. v. Pugh, 6 Ind App. 510, 34 N. E. Rep. 991, and authorities there cited. There is no error in the record, which would justify the reversal of the judgment of the court below. Judgment affirmed.