Eilola v. Oliver Iron Mining Co.

• Decision Date: 22 October 1937
• Docket Number: No. 31129.,31129.
• Citation: 201 Minn. 77,275 N.W. 408
• Court: Minnesota Supreme Court
• Parties: EILOLA v. OLIVER IRON MINING CO. et al.

275 N.W. 408

201 Minn. 77

EILOLA v. OLIVER IRON MINING CO. et al.

No. 31129.

Supreme Court of Minnesota.

October 22, 1937.

Appeal from District Court, St. Louis County; Henry J. Grannis, Judge.

Action by John Eilola against the Oliver Iron Mining Company and William Frederickson. From an adverse order, William Frederickson appeals.

Affirmed.

McMahon & McMahon, of Virginia, for appellant.

George H. Lommen, of Eveleth, for respondent.

PETERSON, Justice.

Action to recover damages for an assault in which plaintiff had a verdict for $900. The assault was without justification and recovery of compensatory and punitive damages was sought.

1. The action originally was against defendants Frederickson and the Oliver Iron Mining Company, it being claimed by plaintiff that Frederickson, in committing the assault, acted within the scope and course of his employment by the Oliver Company. Defendants interposed separate answers denying liability and appeared at the trial by separate counsel. There were no cross-issues between the defendants. Each defendant claimed the right to three peremptory challenges in impaneling the jury. The court allowed three peremptory challenges to defendants in which they were required to join. The ruling of the court was in accordance with Mason's Minn.St.1927, § 9294, which provides that, "if there be more than one party on a side, they shall join in any challenge made; except where the interest of two or more defendants are adverse * * * each such defendant and party shall retain the right to three peremptory challenges." In this case it affirmatively appears that the interests of defendants are not adverse to each other. Each defendant was not entitled to three peremptory challenges. Defendants were entitled to only three challenges as a side. Carr v. Davis, 159 Minn. 485, 199 N.W. 237.

2. Plaintiff's counsel is charged with misconduct in introducing improper and prejudicial matters in the evidence. These matters consist of reference in questions put to witnesses by counsel, to defendant Frederickson as a "policeman," as being a member of the "police force" of the Oliver Iron Mining Company, his duties as such policeman, to police badges, stars, gun, equipment, and similar matters relating to defendant Frederickson as a special policeman, and that he was a deputy sheriff with power of arrest who violated his oath in making the assault, and that he was convicted of the assault. Much of the evidence was offered in an attempt to establish a case against the Oliver Mining Company. Testimony relating to all these matters was received during most of the trial without any objection from either of the defendants. During the last part of the trial the defendant Oliver Iron Mining Company objected to any reference in the testimony to the defendant Frederickson as a "policeman." All of the evidence was received without any objection by defendant Frederickson. Objection to the admission of evidence must be taken at the time the evidence is offered. An objection to the admissibility of evidence cannot be raised for the first time on motion for new trial or appeal. Dunnell, Minn. Dig. (2d Ed.) § 9728; Palmer Fruit Company v. Palmer, 161 Minn. 526, 201 N.W. 537; Bokelmann v. Bokelmann, 180 Minn. 100, 230 N.W. 478; State v. Padares, 187 Minn. 622, 246 N.W. 369.

3. It is claimed that plaintiff's counsel was guilty of misconduct in his closing argument to the jury. His remarks were in reference to the matters alluded to in the preceding section. Some of the comments were severe and scathing denunciation of defendant Frederickson. No objection was taken to the remarks during the argument. The argument was taken down by the reporter. The court then instructed the jury. Thereupon the case was submitted, and the jury retired. After the jury had retired, counsel for defendant Frederickson took numerous exceptions to the closing argument of plaintiff's counsel but did not request the court to give any instructions to the jury or to make any ruling with respect thereto. Ordinarily, in order to obtain a review of misconduct of counsel in argument there must be an objection at the time of the alleged misconduct, a request by the party claiming to be prejudiced for appropriate corrective action, and a failure of the trial court to rule or act. Powell v. Standard Oil Co., 168 Minn. 248, 210 N.W. 55; Dunnell Minn.Dig. (2d Ed.) § 9800. An objection is too late if made for the first time after the jury has retired. 3 Am.Jur. 106-108, §§ 374-377; Long v. State, 2 Ala.App. 96, 57 So. 62; Donahoo & Matthews v. Tarrant, 1 Ala.App. 446, 55 So. 270; May v. Commonwealth, 153 Ky. 141, 154 S.W. 1074; State v. Lockman, 83 N.J.Law 168, 83 A. 689; Behseleck v. Andrus, 60 S.D. 204, 244 N.W. 268, 88 A.L.R. 596; Norris v. State, 32 Tex.Cr.R. 172, 22 S.W. 592; notes: Ann.Cas.1916A, 555-557; 46 L.R.A. 641; L.R.A.1918D, 41; 78 A.L.R. 1527. But it is contended that the exceptions are timely under district court rule 27(f), which provides: "Exceptions to remarks by counsel * * * in the closing argument shall be taken while such * * * argument is in progress unless the same is being taken down in full by the court reporter, in which case exceptions taken at the close of the statement or argument shall be deemed seasonable." 186 Minn. xxxiii.

This rule, suggested in the concurring opinion of Mr. Justice Loring in Olson v. Purity Baking Co., 185 Minn. 571, 242 N. W. 283, relieves counsel of the necessity of interrupting counsel during argument and making objections in cases in which the argument is taken down. Jovaag v. O'Donnell, 189 Minn. 315, 249 N.W. 676. The rule reaffirms the established practice and modifies it only to the extent of permitting a party to take exceptions to the argument of counsel when taken down by the reporter "at the close" thereof. Otherwise the practice is unchanged and unmodified. It is entirely optional with parties to use the old practice or that permitted by the rule. Jovaag v. O'Donnell, supra. Defendant Frederickson failed to bring himself within the rule because he did not take exceptions at the close of the argument. He permitted the court to give its instructions and the jury to...