*553On Petition for a Rehearing.
Davis, C. J.One of the grounds on which the petition for a rehearing is urged, is that the rule enunciated in Grubbs v. State, supra, and followed by us in the original opinion, in relation to the misconduct of counsel for appellee, in his argument to the jury, “is not well founded, either from a legal or common sense point of view.”
We think counsel are in error. That decision, in our opinion, is not only good law, but is also sound common sense.
Counsel contend that “When a pernicious statement,such as the one under discussion, is lodged in the minds of jurors, and hammered in, as in this case, with all the force at the command of able counsel, it is as utterly impossible for a court to remove it by instructions as is the proverbial tale of the camel and the needle’s eye, and for a court to instruct a jury to disregard such a statement, is to set a task beyond the powers of ordinary jurors.”
Counsel underestimate the intelligence and impartiality of the average jury. The presumption is that the jury understood and obeyed the instruction of the court.
Reasoning on the line indicated, counsel for appellant insist that on account of such misconduct of the prevailing party, a new trial should have been granted. In •other words, as we understand the argument of counsel, the only redress for such misconduct is to grant a new trial to the unsuccessful party.
As applied to this case, we are of the opinion that the better and wiser rule is stated in the opinion cited. Ordinarily, if counsel, in argument, is guilty of misconduct in making statements of a prejudicial character not warranted by the evidence, and, on objection thereto being made, the court then and there instructs and directs *554the jury to disregard such statements, if the injured party is not satisfied with such redress, he should make his dissatisfaction known by calling the attention of the court to such action as in his judgment ought to be taken to remedy the wrong. Such misconduct on the part of counsel, in argument, should not be indulged, but the practical result of the rule for which counsel contend would be that in every case where counsel should be guilty of such misconduct a new trial could be demanded a/S a matter of right. The cure, we fear, under such rule, would be more devastating than the disease. Notwithstanding it is the duty of the trial court to see that counsel in argument keep within proper bounds, without objection or action of the parties, yet, if the court, through oversight or otherwise, fails, on his own motion, to discharge this duty, the party who is injured by such misconduct should not be allowed to remain silent until the verdict is returned, and then, if adverse to him, be awarded a new trial solely on the ground of such misconduct.
If we are right in this position, then it follows that when objection is made at the time to such improper argument, and the court, in response to such objection, instructs the jury to disregard the same, it is incumbent on the aggrieved party, if he desires different or greater satisfaction, to call attention of the court to the relief to which he thinks he is entitled, and if such redress is refused, he can then bring the question to the Appellate Court for review, but, in this case, it occurs to us that the court did all that it was necessary to do, under any view of the question, to redress the wrong of which complaint is made. When the court instructed the jury to disregard the statement of counsel, no just cause, as it appears to us, existed for further complaint on the part of appellant.
Filed Jan. 31, 1894.It is earnestly insisted that the damages assessed are excessive. The basis of the argument in support of this proposition is that appellant is sixty-four years of age, and that he is an epileptic, that the disease is most aggravated, both in duration and intensity, making life most dreary and fruitless to him, and a source of the greatest solicitude and care to others, and is in such condition that marriage would probably aggravate the disease and shorten his life, and that appellee, who is fifty years of age, is not entitled to three thousand dollars for appellant’s breach of the contract to marry her.
The evidence tends to prove that the parties had been engaged, by continuing agreements, renewed from time to time for eight years or more prior to the commencement of the suit, and that shortly before the complaint was filed appellant refused to consummate the marriage and repudiated the contract, and that appellant, as asserted by counsel for appellee, in their brief, and hot controverted, was worth twenty-five thousand dollars.
When the facts and circumstances in this case are given the construction most favorable to appellant, the court can not say that the verdict of the jury is excessive. On the contrary, if appellee’s theory of the case, as disclosed by her testimony, is correct, and, on this appeal, she is entitled to have it so considered, so far at least as this question is concerned, the amount of the recovery does not,, in our judgment, evince, as contended by counsel, that there was the want of a just and full consideration by the jury of all things which they should have taken into account in making the assessment of damages.
The petition for rehearing is overruled.