Ellerman v. Skelly Oil Co. , 227 Minn. 65 ( 1948 )

This is simply a case of invited error of which defendants cannot complain. Failure to produce Skelly's driver as a witness, if not an issue in the case, should not have been commented on by either counsel. If the matter was not a proper one for argument for one side, it also was not for the other. Defendants' counsel, who argued first, introduced the question by the following remarks:

"* * * The driver isn't an employee of Skelly Oil Company. He was discharged four to six months later after the accident, long before any claim was made in this case. I don't want you to assume it was because of anything connected with this accident because there hasn't been any claim made here to the Skelly Oil Company until last year. He was discharged in the summer of 1942."

The argument of plaintiff's counsel was provoked by that of defendants' counsel quoted above and was in answer to it. That being true, defendants cannot complain. Improper argument by plaintiff's counsel invited or provoked by improper remarks of defendants' counsel is not ground for reversal. Hinman v. Gould, 205 Minn. 377, 286 N.W. 364; 39 Am. Jur., New Trial, § 61.

The fact that the only question discussed in the dissent is the right of defendants to complain of the argument of plaintiff's counsel is not to be taken as implied approval of the views expressed by the majority. As to those matters, expression of opinion is expressly reserved.

We should affirm.

MR. JUSTICE KNUTSON, not having been a member of the court at the time of the argument, took no part in the consideration or decision of this case.