Swanson v. Swanson , 196 Minn. 298 ( 1936 )

I dissent. The prevailing opinion concedes that on the merits the case was a "close one." On the evidence, then, the jury might have returned a verdict for either the plaintiff or the defendant, and such verdict would have been upheld by this court. A reading of the record establishes beyond doubt that both plaintiff's counsel and defendant's counsel frequently were "off side," and indulged in improper colloquy. However, because of the misconduct of plaintiff's counsel a new trial is ordered. As to whether a new trial should result because of misconduct is almost wholly discretionary with the trial court. State v. Hass, 147 Minn. 269, 180 N.W. 94; Renn v. Wendt,185 Minn. 461, 241 N.W. 581; The Marckel Co. v. Raven, 186 Minn. 125,242 N.W. 471; Olson v. Purity Baking Co. 185 Minn. 571,242 N.W. 283. Here I think there was no abuse of that discretion. The trial court heard the testimony, actually observed the misconduct and noted its effect, if any, on the jury. Because thereof, it was in a much more favorable position than is this court, which has only the cold record before it, to judge whether the misconduct of counsel for one party was so prejudicial as to require a new trial. In the instant case we should not say that substantial prejudice resulted to either party.