O. W. Kerr Co. v. Corry

KOHRSAAT, Circuit Judge (after stating the facts as:above). [1] For plaintiff it is contended that no prejudicial error appears among those assigned. In Miller & Co. v. Wilkins, decided by this court in October, 1913, 209 Fed. 582, we held that reversal will not.be granted where errors complained of do not injuriously affect the substantial rights of parties. In Press Pub. Co. v. Monteith, 180 Fed. 356-362, 103 C. C. A. 502, 508, the United States Circuit Court of Appeals for the Second Circuit states the rule as follows, viz.: “The more rational and enlightened view is that in order to justify k reversal the court must be able to conclude that the error is so substantial as to affect injuriously the appellant’s rights. Prejudice must be perceived, not presumed or imagined.” To the same effect are Security Trust Co. v. Robb, 142 Fed. 78-84, 73 C. C. A. 302, and Barlow v. Foster, 149 Wis. 613-627, 136 N. W. 822. [2-4] It will be observed that no error is assigned to the effect that the verdict and judgment were contrary to the evidence. For all that appears in the assignment, the plaintiff may have sustained his complaint by an overwhelming preponderance of the evidence, even conceding the alleged vice of the errors assigned. There is no merit in the claim that it was error to permit the amendment. The rule in that respect is too well' settled to require discussion. While the record seems to suggest some ulterior purpose on the part of plaintiff in persisting in asking the questions to which obj ections were made and sus [650] tained, we are of the opinion that there was nothing in those questions calculated to or that did prejudice the minds of the jurors against defendant. Nor can we say that the portions of the argument of plaintiff’s counsel objected to by defendant were of such character and persuasiveness that the jury were likely to be misled thereby. There was nothing in the case appealing to the passion of the jurors, nor were the remarks, although of doubtful propriety, of such a nature as to warp the judgment of the 12 men. The same may be said of the questions permitted to be answered over objection of 'defendant. While the form may have been objectionable, the substance wa,s neither misleading nor foreign to the matter involved. With reference to the errors assigned upon the action of the court in sustaining the objections to the questions put by defendant to its own witness Kerr, on sur rebuttal, it appears that objection was made to the question asked on the ground that he was 'called to corroborate Owen after plaintiff had taken the evidence of one Currier to impeach the testimony of Owen as to the agreement to pay the $5,000 commission in any case. This evidence was a part of the defendant’s case and was not improperly excluded in rebuttal. The attempt to prove by the same witness, the nature of the dealings which defendant had with the parties from whom it expected to obtain the land in question was, we think, properly excluded, as not bearing upon the matter at issue. But whether properly excluded or not, we are unable to see that such action of the court served to prejudice, defendant’s case. It was offered to offset some testimony brought out on the cross-examination of Owen, vice president of defendant company, without objection, which in itself was not material. Without going further into details as to whether there was error on the part of the' court in overruling certain objections and sustaining others, it is sufficient to say that we find nothing in the record in its present state to satisfy us that what was done by court and counsel was calculated to or did affect the substantial rights of the defendant. The present case comes within the terms of the decisions above quoted. We are unable to conclude that the record discloses errors so substantial as to affect injuriously the _ defendant’s rights, and the judgment of the District Court is therefore affirmed.