this section of the statute “is a protection provided for the employer”
How later courts described this case
- this section of the statute “is a protection provided for the employer”
Written by the judges who cited it.
The opinion
CONCURRING OPINION
Draper, J.
If the appellee’s attorney believed counsel’s assertion that he “could bring in the doctor” was prejudicially improper, he should have appealed to the court for corrective action. Instead, he made remarks which were entirely improper and which, in my opinion, went far beyond anything which might be considered as being justified by the provocative statement of appellant’s counsel. 1
*201 On motion of appellant the court admonished the jury to disregard the remarks of counsel for the plaintiff for *202 any purpose and to completely disregard what had been said. The court overruled appellant’s motion to set aside the submission.
Courts should not hesitate to set aside the submission of a case when the interests of justice require it, and I think the court would have been justified in setting aside the submission in this case. In the exercise of his discretion he refused to do so. We said in Gerking v. Johnson (1942), 220 Ind. 501 , 44 N. E. 2d 90 :
“An appellate court is too far distant from the scene to gauge the effect of pettifogging remarks of trial attorneys and must repose some confidence in the trial judge’s determination that what was said outside the record was rendered harmless by his admonition to the jury.”
It is only on that basis, and with some regard for the fact that the diatribe under consideration was not wholly uninvited, that I can concur in this decision.
The appellant directs our attention to other instances of alleged misconduct on the part of plaintiff’s attorney. A reference to the record discloses, however, that with one exception where the record was incomplete, no proper objection was made. The cumulative effect of other asserted instances of misconduct, concerning which no objection was made in the trial court, cannot, in my opinion, furnish any basis for reversal.
Jasper, C. J., concurs.
NOTE.—Reported in 106 N. E. 2d 453 .
“Mr. Waltz: You can bring in the Doctor.
“Mr. Ward You can bring Dr. Thompson in. You have already talked to him. I will not bring him in because he is on *201 your payroll. If you say you haven’t talked to him I will bring him. It costs just $100.00 to bring him up from Indianapolis.
“Mr. Stipher: I want the court to instruct the jury to disregard all the statements made by Mr. Ward about Dr. Thompson and how much it would cost to bring him here because it is highly prejudicial in this case and made to influence the jury.
“Mr. Ward: You know that doctor don’t have to leave his county and you jump on me about it and you know it is absolutely a cowardly thing on a crippled boy like that. That is why the case was brought up here, so we couldn’t subpoena the doctors. Jump on me for not bringing a doctor here and I will make you eat it.
“Mr. Waltz: I think we should try the case orderly without all this noise. We object to any further speeches on the part of Mr. Ward.
“Mr. Ward: This doctor is on that insurance company payroll and then they ask me why we don’t bring the doctor here, a place he does not have to come. We never brought this change of venue up here and then you ask me why I don’t bring a doctor up here, a place where he don’t have to come.
“Mr. Waltz: At this time I would like to move for the court to set aside the submission of this case on account of the prejudicial remarks of the counsel.
“The Court: The jury is instructed at this time that the remarks of counsel for the plaintiff will be disregarded for all purposes in this case. You will not consider them as any part of the evidence or for any other purpose and you will completely disregard anything that has been said since that exhibit has been handed to the jury, for any purpose.
“Mr. Ward: I would like to move the court to instruct the jury to disregard the remarks Mr. Waltz said about bringing a doctor here when the statute says a doctor does not have to leave his county. If that wasn’t done to prejudice the jury.
“Mr. Waltz: I move the Court to disregard those remarks and further that the court set aside the submission for the remarks just made by the counsel for the plaintiff.
“The Court: That is overruled, and I don’t want to hear anything from either side while the jury has that exhibit.
“TO WHICH RULING OF THE COURT THE DEFENDANT AT THE TIME EXCEPTS. EXCEPTION GRANTED.”