(dissenting). I dissent for this reason:. The bill of exceptions shows that one of the attorneys for the plaintiff, and who, from the name, seems also to have been the administrator of the estate of the deceased, used this language in arguing the case to the jury: “That the defendant, the Alaska-Treadwell Gold Mining Company, was owned by the wealthy Rothschilds of England, who are gathering the wealth of this country and sending it abroad, and that, if the jury should return a verdict for the full amount prayed for, namely, $10,000,'such amount would not equal 1 per cent, of the annual income of the defendant.”
The record proceeds: “To which argument and statement the defendant, by its counsel, objected and excepted, *153and the court thereupon sustained the objection and directed that no such argument be used, whereupon said counsel for plaintiff immediately stated to the jury that he wished to withdraw said remark and requested the jury not to consider it, and the court, both at that time and in its charge, instructed the jury that it must disregard that and all other remarks of counsel which were not borne out by the evidence.”
This conduct of counsel for the plaintiff constituted, it seems, one of the grounds of the motion made by the defendant for a new trial, and, in the opinion of the trial court rendered in the case and set out in the record, we find this: “After counsel for the plaintiff made the remark, as charged by defendant, counsel excepted thereto. Not only did counsel for plaintiff withdraw the statement and request the jury not to consider it, but the court both at the time, and in its charge emphatically instructed the jury that it must disregard that and all other remarks of counsel which were not borne out by the evidence. The practice of injecting remarks of that character into arguments before the jury is all too prevalent at this bar, and is most pernicious. The court has repeatedly cautioned various counsel upon this subject, pointing out the impropriety and unfairness of it. No permanent good can come of it¡ A perversion of justice always results, and the bar should cease to follow it. In this instance, however, the statement of counsel for plaintiff and the instruction of the court were such that it would be improper to set the verdict aside. Certainly is this true when the evidence as to the earning capacity, life expectancy, etc., are sufficient in themselves to support the verdict. This ground then cannot avail to secure a new trial, however great may have been the unfairness and impropriety pf the language used.” While the rule is well settled that it is not for the appellate court to consider whether or not the amount of damages awarded by the jury was, under the evidence, excessive, it is proper, in considering the possible effect upon the jury of the grossly improper conduct of counsel in this case, to note the fact that the amount of damages awarded by the jury could not have been greater than it was, for it was the full amount sued for, to wit, $10,000. The well-established rule is also to be remembered that: “The presumption always is that error produces *154prejudice. It is only when it appears so clear as to be beyond doubt that the error challenged did not prejudice, and could not have prejudiced the complaining party that the rule that error without prejudice is no ground for reversal is applicable.” Union Pac. R. Co. v. Field, 137 F. 14, 69 C.C.A. 536; U. S. v. Gentry, 119 F. 75, 55 C.C.A. 658; Moores v. Bank, 104 U.S. 625, 26 L.Ed. 870; Gilmer v. Higley, 110 U.S. 47, 3 S.Ct. 471, 28 L.Ed. 62; Railroad Co. v. O’Brien, 119 U.S. 103, 7 S.Ct. 118, 30 L.Ed. 299; Mexia v. Oliver, 148 U.S. 675, 13 S.Ct. 754, 37 L.Ed. 602; Railroad Co. v. O’Reilly, 158 U.S. 337, 15 S.Ct. 830, 39 L.Ed. 1006; Peck v. Heurich, 167 U.S. 629, 17 S.Ct. 927, 42 L.Ed. 302; Railroad Co. v. Holloway, 114 F. 465, 52 C.C.A. 260; Association v. Shryock, 73 F. 781, 20 C.C.A. 3; Railroad Co. v. McClurg, 59 F. 863, 8 C.C.A. 322; Deery v. Gray, 5 Wall. 807, 808, 18 L.Ed. 653; Smith v. Shoemaker, 17 Wall. 639, 21 L.Ed. 717.
I am unable to understand how the court below could permit a verdict to stand in view of the conduct of counsel • which it characterized as “pernicious,” and from which it expressly declared “a perversion of justice always results.” It seems to me that a trial which is not fair and impartial is a mockery of justice, and that an appellate court should not sustain the judgment in which such a trial resulted, when brought up for review upon a record which affirmatively shows the unfairness. I say the record in this case affirmatively shows the improper conduct because the bill of exceptions contained in the record, and which was settled and signed by the trial judge, expressly recites the conduct and states that the defendant objected and excepted thereto at the time. Nothing more in my opinion is needed for the correction of the error. But, if an assignment of error be considered essential, that also is found in the record in these words: “The court erred in refusing to grant defendant a new trial of this cause on the ground of the misconduct of counsel for plaintiff in his argument of the cause to the jury which vitiated said verdict and made it improper and erroneous to render a judgment thereon.”
It-is true that that assignment was filed in support of a motion for a new trial, and that we cannot review an order refusing a new trial. But the assignment, which is a part of the record, goes beyond the verdict and also assigns as. *155error the entry of the judgment because of the misconduct of the plaintiff’s counsel, which in my opinion is quite sufficient even if it be conceded that any assignment of error was necessary.
I hold that the judgment should be reversed because of such gross misconduct of the counsel for the plaintiff. Whether or not the Rothschilds of England are wealthy, and whether or not they are gathering the wealth of this country and sending it abroad, had no connection whatever with any issue on trial before the court and jury. The manifest and sole purpose of counsel could only have been to throw into the scales of justice grossly improper extraneous matter, the direct tendency of which was to inflame the passions and prejudice of the jurors against the defendant, thus absolutely preventing the fair and impartial trial of the issues to which, and only to which, each side was justly and legally entitled. To what extent such extraneous and improper matter may have influenced the verdict that was returned — for the maximum amount that could have been awarded the plaintiff — it is impossible for any one to say.
The judgment in the case of Mountain Copper Co., Ltd., v. Van Buren, 123 F. 61, 59 C.C.A. 279, which was also an action for damages, was reversed on another ground, but in concluding the opinion in the case we said: “But we think it proper to refer to another point presented by the plaintiff in error as ground for reversal growing out of a statement by one of the counsel for the plaintiffs in the action, in his closing argument to the jury, to the effect ‘that an accident insurance company was defending the case.’ It is not pretended that there was any evidence tending to show that such was the fact. It is true that, upon objection and exception made and taken to the remark of the plaintiffs’ counsel, the court directed him to desist from that line of argument, and instructed the jury to disregard the statement. It is not necessary to decide in this case whether this impropriety on the part of counsel should or should not of itself call for a reversal of the judgment, but it is well to call attention to the gross impropriety of bringing into the trial of any case matter wholly unconnected with it, the direct tendency of which may well be to prejudice one of the parties, and the extent of which it is not always, if ever, possible to measure.”
*156In Cudahy Packing Co. v. Skoumal, 125 F. 477, 60 C.C.A. 306, the Circuit Court of Appeals for the Eighth Circuit said: “It goes without saying that a trial judge has the power, and is always at liberty of his own motion, to reprimand counsel when they make use of language or indulge in a line of argument that is improper, unfair, or that is calculated to arouse the prejudice of jurors, or divert their attention to extraneous matters, or to issues that are foreign to the case; and no trial judge should hesitate for a moment to exercise such power, although his intervention is not solicited.”
In Mitchum v. State of Georgia, 11 Ga. 634, it was said: “When counsel are permitted to state facts in argument and to comment upon them, the usage of the courts regulating trials is departed from, the laws of evidence are violated, and the full benefit of trial by jury is therefore denied. It may be said in answer to these views that the statements of counsel are not evidence, that the court is bound so to instruct the jury, and that they are sworn to render a verdict only according to the evidence. Whilst all this is true, yet the effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances ; and, if they in any degree influence the finding, the law is violated, and the purity and impartiality of the trial are tarnished and weakened. If not evidence, then without doubt the jury have nothing .to do with them, and the lawyer no right to make them. * * * To an extent not definable, yet to a dangerous extent, they are evidence, not given under oath, without cross-examination, and irrespective of all those precautionary rules by which competency is tested.”
In Brown v. Swineford, 44 Wis. 293, 28 Am.Rep. 582, it was said: “The very fullest freedom of speech within the duty of his profession should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant, to the case and outside of the proof. It may sometimes be a very difficult and delicate duty to confine counsel to a legitimate course of argument. But, like other difficult and delicate duties, it must be performed by those upon whom the law imposes it. It is the duty of the Circuit Courts in jury trials to interfere in all *157proper cases of their own motion. This is due to truth and justice. And, if counsel persevere in arguing upon pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence, exception may be taken by the other side, which may be good ground for a new trial, or for a reversal in this court.”
In State v. Hannett, 54 Vt. 89, the court said: “Counsel in their arguments to the jury are bound to keep within the limits of fair and temperate discussion. The range of that discussion is circumscribed by the evidence in the case. Any violation of this rule entitles the adverse party to an exception which is as potent to upset a verdict as any other error committed during the trial.”
I think the judgment should be reversed, and the case remanded to the court below for a new trial.