161 A. 373

GEORGE E. ABBOTT v. JOSEPH W. LADD. RICHARD W. COLBY v. SAME. EVA S. COLBY v. SAME. CHARLES W. COLBY v. SAME.

Supreme Court of New Hampshire Belknap.
Decided June 23, 1932.

Improper argument is corrected if counsel withdraw it and the court instruct the jury to disregard it and find the trial to have been fair. Counsel having in argument referred to one of the plaintiffs as not a “very wealthy” man, withdrew the remark upon defendant’s objection and the court charged that the remark should be disregarded and found the error corrected and the trial fair. No motion for mistrial having been made, the defendant waived the position that the argument was incurable. The finding that such trial was fair is not open to attack unless it is probable that no juror could be unaffected by the argument in spite of the direction to disregard it.

ACTIONS, for negligence. Trial by jury and verdicts for the plaintiffs. In argument counsel referred to one of the plaintiffs as a not “very wealthy” man. Upon objection the statement was withdrawn, counsel requested the jury to disregard it, and the court instructed the jury to give it no weight “because a man’s rights in court do not depend on whether he is rich or poor.” The court found the error corrected and the trial fair. A bill of exceptions was allowed by Young, J. on the defendant’s exception taken at the time the objection was made.

Dennis E. Sullivan and Robert W. Upton, for the plaintiff Abbott.

Stanton Owen and Thomas P. Cheney (Mr. Cheney orally), for the other plaintiffs.

Murchie, Murchie Blandin and Jewett Jewett (Mr. Alexander Murchie orally), for the defendant.

ALLEN, J.

Technically no exception was taken. The objection to the argument was sustained, and there was no ruling or order by the court with which the defendant finds fault. It is true that the record appears to show an exception to the court’s statement that the

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wealth or poverty of a party is immaterial, but the exception is construed to relate back to the argument and not to question the correctness of the ruling implied in the statement.

If the defendant thought the harm of the argument was incurable, it would seem that he should have moved for a mistrial and taken exception if the motion were denied. Not then urging the impossibility of a fair trial, he may be found by the procedure to have waived the issue. What he apparently sought to do was to maintain a double advantage of possible verdicts in his favor and of no valid verdicts against him. Not objecting to the continuance of the trial, he might not fairly say that he had the chance of a favorable outcome with no risk of loss. Verdicts in his favor would show the harm of the argument to be ineffective, and to admit the possibility of such verdicts concede that the harm was curable.

But if it be assumed that the exception amounted to a claim that the error could not be corrected and it was the court’s duty to order mistrial upon the commission of the error, the defendant is no better off. The holding, for which citations are unnecessary, has been repeatedly made that improper argument may be corrected if counsel withdraw it and the court instructs the jury to disregard it.

If the impropriety of argument may be too flagrant to permit of correction, it is not the situation here. If it is too much to expect that a jury will be as resentful as the court to arguments and considerations of a party’s wealth or poverty, the general presumption that the jury obeys instructions may at least be invoked to support a finding that such considerations were laid aside. It is not suggested that the plaintiffs were not entitled to verdicts on the merits of their causes. The finding that the trial was fair is not open to attack unless it is to be said that no men serving as jurors could probably be unaffected by the argument in spite of the order to disregard it. Socialism of the jury’s mind to such an extreme is not recognized,

Judgments on the verdicts.

All concurred.

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