dissenting:
I do not disagree with the court that plaintiff’s counsel made some statements in his argument to the jury which were improper, but I do not agree that any or all of such statements justify a reversal of the judgment in this case. The court holds certain language appealed to the emotions and prejudice of the jury. I do not place any such construction upon the language, nor do I think it a reasonable inference that the jury understood the language in the sense given it by the court. The opinion concedes it might be understood in a different sense from that attributed to it by the court. The reversal of the judgment is based principally, if not solely, upon the second part of the argument set out in the opinion, in which plaintiff’s counsel sáid, in substance, that if the accident did not happen at Twenty-fifth street, he, his associate and their witnesses ought to be over on the north side; that if the case was framed up he framed it up; that he and his associate looked up and talked with the witnesses; that they canvassed the neighborhood up and down. This, the court holds, was so prejudicial as to require a reversal of the judgment. I agree that this argument was not legitimate because not based upon any testimony, but I do not attribute to it such influence and effect upon the jury as is given it by the court. Each of the three objections made to the argument of plaintiff’s counsel by counsel for defendant was sustained, the jury were, told to disregard the remarks, and twice counsel for plaintiff was rebuked by the court, and I think it more reasonable and in harmony with common experience that the action of the court fully offset and overcame any influence .such statements might otherwise have had on the minds of the jury.
The general rule is, that misconduct of counsel on the trial can only be reviewed upon exceptions taken to the action of the trial judge in ruling upon objections made to such misconduct, or in failing to rule when requested to do so, and preserving exceptions to such rulings or failure to rule. (Lipsey v. People, 227 Ill. 364; McCann v. People, 226 id. 562; City of Salem v. Webster, 192 id. 369.) Here no exceptions were or could be preserved to the rulings of the court, for the reason that the rulings were in favor of the party making the objection. In some cases, however, it has been held that conduct of counsel was so bad and prejudicial that the rulings of the .court did not remove the prejudice or cure -the error. In Chicago Union Traction Co. v. Lauth, 216 Ill. 176, it was said: “The rule is, that although the trial court may have done its full duty in its supervision of the trial and in sustaining objections, a new trial should be granted where it appears that the abuse of argument has. worked an injustice to one of the parties.” In that case the language of counsel was extremely abusive of defendant. The Appellate Court required a remittitur of $5000 from the judgment in favor of plaintiff and affirmed the judgment for $10,000. This court held that the action of the Appellate Court in requiring a remittitur was conclusive that the verdict was far in excess of the actual damages.
In Chicago and Alton Railroad Co. v. Scott, 232 Ill. 419, which was a condemnation suit brought by the railroad company, counsel for the land owner indulged in highly inflammatory language against the railroad company,—language highly calculated to prejudice, and apparently used for the purpose of prejudicing, the jury. The trial court sustained an objection to the argument, but the attorney continued in the same line without even a rebuke from the court, and it was held that the perfunctory sustaining .of the objections, under the circumstances, did not cure the error.
McCarthy v. Spring Valley Coal Co. 232 Ill. 473, was an action for personal injuries. Counsel for plaintiff in his opening statement stated plaintiff was thirty-three years of age and had a wife and five children. This was objected to by defendant and the objection sustained. In the cross-examination of one of defendant’s witnesses the plaintiff’s counsel asked a question the purpose of which was to indicate to the jury that defendant was insured against liability for accidents and that the insurance company would have to respond for any judgment plaintiff obtained. There was judgment for the plaintiff, from which the Appellate Court required a remittitur of $2000. This court held that the effect of the statement of counsel that plaintiff had a wife and five children could not be removed by the ruling of the court in sustaining an objection to it, and that the effort to give the jury to understand that defendant was insured was also very prejudicial to defendant. The fact that the judgment was for $2000 more than the Appellate Court would approve, warranted the belief that the verdict of the jury was excessive.
In Peoria, Bloomington and Champaign Traction Co. v. Vance, 234 Ill. 36, counsel for a land owner in a condemnation proceeding, in his argument, indulged in improper and highly prejudicial remarks about defendant. Numferous objections were made and overruled by the court. There had been a previous trial of the case, and in his argument counsel told the jury what the verdict was in the former trial. Objection to this was sustained. The judgment was reversed because of the action of the court in overruling objections to improper argument and also because of the statement of counsel of what the verdict was in the former trial, which, it was held, placed the fact before the jury, so that sustaining objections to it after it was stated could not take it from the jury.
Some other cases of like character might be cited, but the above sufficiently typify the cases where it has been held by this court that sustaining objections to improper statements in argument would not cure the error.
City of Chicago v. Reseth, 142 Ill. 642, was an action by plaintiff to recover damages for an injury claimed to have been received by reason of a defective sidewalk. During the cross-examination of one of the defendant’s witnesses plaintiff’s counsel stated he was told that other accidents had happened there. Objection to this remark was sustained by the court and counsel was told it was hig'hly improper for him to make any such statement. This court said it would not presume, in view of the action of the court, that the jury would be prejudiced by the statement. The court said it was natural that attorneys, however cautious and fair they intended to be, should sometimes make improper remarks in the presence of the jury, but that injurious effects of such remarks could generally be corrected by the court at once or by instructions ; that it is only in cases where counsel persist in attempting to mislead and prejudice the jury improperly and where the court has refused to interfere, or where a reviewing court can say that, .notwithstanding the efforts of the trial judge to remove the prejudicial effects of the misconduct, an injury may have resulted to the opposite party, that a judgment will be reversed on the ground, alone, of misconduct.
In Joliet Street Railway Co. v. Call, 143 Ill. 177, plaintiff’s counsel, in his argument to the jury, attacked in very severe language two of defendant’s witnesses and inquired why one of them was not present at the time. He answered his own inquiry by stating he had committed larceny the night before and was locked up in the calaboose. This was wholly outside the record. This court said the language was highly improper, but as the trial court promptly rebuked counsel and told the jury to disregard the statement the error was cured. The court said a verdict should not be set aside on account-of misconduct of counsel unless it is apparent that, notwithstanding the action of the trial court, injury may have resulted to the adverse party.
In Monmouth Mining and Manf. Co. v. Erling, 148 Ill. 521, plaintiff’s counsel, in his closing argument to the jury, referred to the financial condition of the parties to the suit. Objection to this line of argument was sustained by the court and we held the improper conduct afforded no ground for reversal.
In Pittsburgh, Cincinnati, Chicago and St. Louis Railway Co. v. Kinnare, 203 Ill. 388, plaintiff’s counsel, in addressing the jury, did not confine himself to a discussion of the evidence but devoted his remarks largely to an attack upon defendant and his counsel concerning the manner of the defense and objections it had made to testimony. This court said the conduct of counsel was not well regulated by the court, but as objections were sustained to the remarks complained of, the improper argument did not afford suf.ficient ground for reversal of the judgment.
In Deel v. Heiligenstein, 244 Ill. 239, counsel stated in his argument that he didn’t claim any credit for representing the cause of a weak woman or of an invalid child; that he was simply doing his duty. His client was a widow and had a child. On objection being 'made tO' the statement it was sustained by the court. This court held the use of such language was highly improper and calculated to arouse the passions and prejudice of the jury, but that in view of the ruling of the court, considered together with the amount of damages awarded, it could not be said that the jury were influenced, in arriving at their verdict, by the statement. The court said: “Generally, in civil cases, it is only when the amount of the verdict of the jury is large or clearly excessive that such remarks of counsel will require a reversal.”
Many other cases similar in principle will be found in our Reports. An extended discussion of the subject when improper conduct of counsel will require a reversal of the judgment will be found in chapter 30 of Thompson on Trials, together with a large number of cases collected by the author.
I wish to emphasize that I not only do not approve of the argument of counsel complained of, but that of portions of it I most emphatically disapprove, but however I may disapprove of the argument, a reversal would not be justified on that' ground, alone. A reversal is only warranted in such case when it is apparent that the opposite party might reasonably have been prejudiced as a result of such misconduct. In the first place, the court did all in its power to prevent any prejudice resulting from the argument, and I think, considering the character of the argument and the action of the court, that if it is ever possible in any case to say the action and rulings cured the error of misconduct of counsel they did so .in this case. The court not only rebuked counsel at the time the remarks were made and told the jury to disregard them, but at the close of the evidence instructed the jury that sympathy for the disability of plaintiff should have no influence upon • them in determining whether defendant was liable, ór if liable, in determining the amount of their verdict; that the question of defendant’s liability was to be determined from the evidence, under the instructions of the court; that the jury must decide upon the evidence and not upon statements of counsel outside of or unsupported by evidence; that the verdict must be governed by the law, alone; that it was the province of the court to decide upon the admissibility of the evidence, and that all reference to the evidence, in the instructions, meant only evidence that was admitted on the trial; that evidence offered but excluded must not receive any consideration from the jury in deciding the case; that evidence heard but stricken out by the court must be totally ignored and treated as if it had not been heard. It has not been, and could not reasonably be, claimed that if defendant was liable the verdict was excessive. There is no indication from the size of the verdict that the minds of the jury were inflamed or their prejudice aroused against defendant. The trial court was in a- better position to determine whether the improper conduct complained of prejudiced defendant than is a reviewing court. If the trial court was satisfied that defendant was prejudiced by the conduct of counsel complained of, it should have set aside the verdict and awarded a new trial. That it did not do so is not conclusive on this court but is entitled to weight in determining the question here. In North Chicago Street Railway Co. v. Cotton, 140 Ill. 486, in discussing this subject this court said, in substance, that when the record bears the official sanction- of the trial judge every reasonable presumption will be indulged that he has properly performed his duty and exercised the discretion vested in him and has permitted no misconduct of counsel to materially prejudice the opposite party, unless such misconduct and its prejudicial nature are clearly shown by the .record. In Chicago City Railway Co. v. Creech, 207 Ill. 400, this court said: “Under the second point it is insisted that, in the argument to the jury, counsel for appellee went outside the record and commented on matters upon which there was no evidence, and made umyarranted appeals to class prejudice for the purpose of prejudicing the jury. We have held that in' the argument of cases to juries, attorneys must be allowed to make reasonable comment upon the evidence and upon the conduct of witnesses giving their testimony; that the interest of public justice requires that counsel should not be subjected to any unreasonable restraint in this regard; that the matter is one which must be left largely to the sound discretion of the presiding judge, it being for him to say, under all the circumstances of the case and in view of the remarks preceding the argument objected to and the temper and character of the jury, whether or not a new trial should be granted for the misconduct of counsel by way of improper argument to the jury.”
It is a proper matter of consideration that this case has had two previous trials. There was a disagreement of the .jury on the first trial. The second trial was before the same judge who presided at the last trial and there was a verdict in favor of the plaintiff, which was set aside for reasons not appearing in the record. ■ Whether plaintiff was entitled to a verdict or not depended upon the weight and credit to be given to the testimony of the witnesses for the respective parties to the case. That was a question for the jury. They adopted the view of the witnesses for plaintiff, and that action has been approved by the trial and Appellate Courts. This court cannot say that was unauthorized, nor does it appear that the action of the jury in arriving at their verdict might reasonably have been the result of the improper conduct of counsel complained of, in argument. I think the judgment should have been affirmed.