Powers v. Mitchell , 77 Me. 361 ( 1885 )

LibbeY, J.

This case comes up on motion and exceptions. The ground insisted on in support of the motion is the misconduct of the defendant’s counsel in his closing argument, in asserting facts not in evidence, and not competent evidence if offered, and arguing thereon. The motion cannot be sustained. If the defendant’s counsel, as claimed by the plaintiff, exceeded the proper license of an advocate in his argument to the jury, it was the duty of the plaintiff’s counsel, if he thought his client’s rights were being prejudiced, to interpose objection; and then if the judge declined to interfere the plaintiff might have exceptions. Rolfe v. Rumford, 66 Maine, 564. And if the judge stopped counsel and required him to desist and retract, and he refused to do so, the plaintiff might have his remedy by motion. But by electing to interpose no objection and rely upon the advantage he might have by counter assertion and argument in reply, he waived his right to exception or motion. Learned v. Hall, 133 Mass. 417. The case is similar in principle to a case of disqualification or misconduct of a juror. If known to a party during the trial, and he wishes to take advantage of it, he must interpose his objection. He cannot elect to take his chance of a verdict in his favor and if he fails then raise the objection.

' Several exceptions were taken to the admission and exclusion of evidence. Those relied on will be examined in the order in which they are presented by the plaintiff’s counsel. 1 and 2 relate to the conduct of the plaintiff in causing the action to be commenced before notifying the defendant of her claim for damages, and causing his property to be attached. The officers’ return, of the attachment was in the case. The questions were put to the plaintiff on cross ex-amination. She cannot complain that she was required to answer them.

3 and 6 are similar in principle. The objection to the questions urged by the learned counsel is that they embraced hypothetically, facts not in evidence. It is sufficient to say that the exceptions and the evidence reported do not show that there was no evidence in the case tending to prove those facts. Nor does it appear that the objections to the questions were for that cause. To lay the foundation for exceptions on that ground the attention of the judge should have been called to the specific objection, so that he could determine, as he must in the first instance, whether there was sufficient evidence tending to prove the facts stated to authorize the questions.

4. The question put to Dr. Dana and excluded, was objectionable because it does not appear that he had heard all the testimony of the plaintiff, nor does it appear what personal knowledge he had, if any, of her health.

5. We are inclined to the opinion that the question put to Mrs. Goddard, and excluded, was competent on the question of damages; but if so the plaintiff is not aggrieved, as the jury found the defendant not guilty, and the question of damages became of no importance.

8, 9, 12 and 14 are alike in principle and may be considered together. They call for the opinion of the physicians as to the physical effects, upon the person of blows received in the manner specified. Their answers were, in substance, that they should expect a greater injury from a direct blow than from a glancing one. We think the subject was within the range of the experience of medical experts, accustomed to observe the effect of blows upon tbe human body, and that the evidence was competent.

10 and 15. The subject to which the questions put to Dr. Packard and Dr. Brickett relate is clearly a proper one for the opinion of medical experts. No question is made as to their qualifications as such. The questions and answers were competent.

The case has been four times tried to the jury with two disagreements, and two verdicts for the defendant. The litigation should not be further prolonged without some substantial reason. Upon a careful examination of the whole case as presented, we see no good cause for disturbing the verdict.

Motion and exceptions overruled.

Peters, C. J., Daneorth, Emery and Foster JJ., concurred.