(Concurring.) — I agree with the conclusion of the Chief Justice, but place it upon the grounds that the remarks of counsel for plaintiff were provoked by statements of counsel for defendant equally as foreign to the issue and quite as uncalled for. The latter in his argument to the jury said, in substance:
“That defendant was practically broke; that a judgment against it would cause irreparable damage and injury; that it could not afford to be mulcted in damages; that the defendant company would be ruined, and practically put out of business, if a jury rendered a verdict against it in this case.”
Counsel for plaintiff justifies his excursion outside of the record, and claims his remarks were made only for the purpose of counteracting the poverty plea made in behalf of defendant. To uphold such a contention may seem to reverse the old adage, “Two wrongs never make a right”; but at the same time it preserves the rule that forbids one from taking advantage of a wrong that he himself has provoked.
*135“Improper language used in argument is not ground for reversal, where such language was provoked by the remarks of counsel for the adverse party, unless it appears quite plainly that the verdict was influenced thereby. . . . Moreover, the rule applies, although the language used would clearly authorize á reversal in the absence of such provocation.” 38 Cyc. 1501.
This seems to be a fair statement of the rule as generally recognized by the courts.
I think appellant’s objection to the remarks of counsel for appellee was sufficient to call for a ruling thereon by the court. It was not necessary for him to point out wherein the remarks were objectionable, for they could not be justified on any ground except as retaliatory. The language used by counsel for plaintiff would have been highly improper, in the absence of the remarks of counsel for defendant, and doubtless would have been withdrawn from the jury by proper directions, on objection thereto by defendant, had not defendant’s counsel been equally guilty of going outside of the record in his address to the jury.
I do not think a general instruction that the jury try the case free from bias and prejudice and wholly upon the evidence was tantamount to directing it to disregard the remarks of counsel. Statements of that character should be specifically withdrawn from the jury, with proper admonitions, generally upon objection, and always upon motion, unless they were provoked, as in this case.
BAKES, J. — I concur in Judge BOSS’ opinion.