Cone v. Citizens Bank

The opinion of the court was delivered by Dennison, J. : During the last trial of this case in the court of common pleas of Sedgwick county,- the [476] defendant below submitted to the court 94 special questions, requesting that they be submitted to the jury, for answers. The court submitted them to the jury, and in presenting them he made use of the following language: “I want the jury to understand that these questions are got up to befuddle and mislead the jury so that there will be error in the trial of this case, so that the verdict may be set aside.” Among the grounds upon which a new trial was asked are the following: (1) Irregularities in the proceedings of the court; (2) the abuse of discretion by the court, by which this defendant was' prevented from having a fair trial. Paragraph 4401 of the General Statutes of 1889 provides that a new trial may be had upon these grounds. Upon an examination of the record, we are unable to say that the defendant below was not prejudiced by the remarks of the court. By this statement the judge assumes that the verdict will be for the plaintiff below, and that the defendant below wants error committed in the trial so that the verdict may be set aside, and that the questions were submitted to the jury to accomplish that result. It is well recognized that juries have a great respect for the opinion of the trial court, and are always on the alert for some intimation as to what the trial court thinks of the case. From the remark of the trial court the jury must have concluded that the court supposed* of course, that the judgment ought to be rendered for the plaintiff below, and this, and several other remarks of the court which were complained of, indicated very strongly to the jury that the trial court thought that the judgment ought to be for the plaintiff below. We are unable to say that their action was not influenced by the remarks of the court. “Any improper remark of the court in the presence [477] and hearing of the jury, liable .to influence their action, is misconduct.” (16 Am. & Eng. Encyc. of Law, 524.) “ Judges must take great care to say nothing in the hearing of the jurors while the case is progressing which can possibly be construed to the'prejudice of either party.” (Cronkhite v. Dickerson, 51 Mich. 177.) “Error will lie on the demeanor of the trial judge if it be such as to prevent a fair trial or prejudice the case upon the facts before the jury.” (Wheeler v. Wallace, 53 Mich. 355.) These cases are cited approvingly in Walker v. Coleman, 55 Kan. 381, which case was reversed and a new trial granted because of improper remarks made by the same judge who tried this case. We think no good purpose can be served by an examination of the other errors complained of in this case. They are largely predicated upon the special findings of the jury, and. upon another trial the answers to the questions may not be the same. The judgment of the court of common pleas of Sedgwick county is reversed, and the case remanded to the district court of that county for a new trial. All the Judges concurring.