I dissent. The majority opinion contains a full, fair and complete statement of what occurred at the trial, and my conclusions are rested thereon.
As to what occurred in the selection of the jury, I am satisfied that it was prejudicial error, so far as complained of. I can see no distinction in the effect or result between a statement made at the threshold of the trial and one made in the course of final argument. If poison be injected into the body, it makes little difference whether it be in the hand or the foot; and if the result be fatal, the point of inoculation becomes of no consequence. If a trial be otherwise fair, a prejudicial statement made in the course of final argument may sometimes be wholly disregarded by a fair-minded jury, but if the trial proceed from the beginning *Page 101 upon a prejudiced course, it becomes difficult to right it.
As to the colloquy between court and counsel, as well as between counsel themselves, I think that their cumulative effect was also prejudicial. The record, as well as the majority opinion, is silent as to anything indicative of fault or provocation on the part of appellants' counsel; yet the burden of the court's censure fell upon him. As I interpret the probable reaction upon the jury, it presented to them the case of a lawyer from a city coming into a smaller community seeking to defeat a just claim by methods obnoxious to the court and unfair to local counsel. In a case such as this, where the natural sympathy of the jury would be inclined toward the plaintiff because of his pitiable condition, and where the defense moved against an atmosphere of bias and prejudice, for which defendants' counsel appeared to be responsible in the eyes of the jury, the result was almost inevitable. The case, I think, falls within the criticism expressed by this court in Kluge v. Northern PacificRailway Co., 167 Wn. 294, 9 P.2d 74, cited in the majority opinion.
While it would be regrettable that the efforts of a long trial, particularly when repeated by a second, should be lost by a reversal of the judgment, yet if the result be based on the expression of a biased or prejudiced jury, it should be held to be no judgment at all. I think that the judgment in this case follows a verdict in which is reflected the jury's prejudice, and should be reversed. I therefore dissent.
BEALS, C.J., and MILLARD, J., concur with STEINERT, J. *Page 102