English v. Anderson

• Decision Date: 10 June 1905
• Citation: 88 S.W. 583,75 Ark. 577
• Parties: ENGLISH v. ANDERSON
• Court: Arkansas Supreme Court

88 S.W. 583

75 Ark. 577

ENGLISH v. ANDERSON

Supreme Court of Arkansas

June 10, 1905

Appeal from Sharp Circuit Court, Western District, JOHN W. MEEKS Judge.

Reversed.

Reversed and remanded.

John B McCaleb, Sam H. Davidson and D. L. King, for appellant.

The remarks of counsel for appellee were highly improper. 44 Wis 282; 48 Ark. 106; 58 Ark. 368, 473; 61 Ark. 130; 63 Ark. 174; 6 Ark. 626; 70 Ark. 179, 305; 67 Ark. 366, 516; 74 Ark. 256.

OPINION

HILL, C. J.

The appellant English sued appellee, Anderson, alleging that Anderson as his tenant failed to cultivate his farm in a husbandlike manner, in violation of the contract of rental; that he injured his orchard by allowing cattle to break into and eat the branches, and break down the trees, and that he suffered the trees to be cut, broken down, etc., and that he burned the rails from his fences, and polluted his cistern, and did other specific acts of injury, for which he prayed damages, specifying the amount of each item. Anderson denied all allegations of injury, and the issues were tried before a jury, who found in favor of Anderson. It cannot be said that the verdict is without evidence to support it, yet a great preponderance of the evidence is against the verdict, which does not seem responsive to the evidence on the issues before the jury. This, of course, is not ground for reversal, but it does lend weight to the errors assigned in regard to the argument of counsel for the prevailing party. The record shows the following:

George G. Dent, Esq., one of the attorneys for appellee, in opening his case, stated to the jury that he expected to prove "that plaintiff had damaged his orchard himself;" "that plaintiff had poisoned his own well;" "that he (plaintiff) had his wife's life insured, and that he poisoned the well for the purpose of poisoning her and collecting the insurance," and that "plaintiff had killed and poisoned another party." Appellant, by attorney, objected to this language at the time, and asked the court to withdraw it from the jury, and thereupon the court, in a mild manner and tone of voice, stated to the attorney that the remarks were not proper, and said to the jury, in the same tone, not to consider said remarks.

The evidence was then produced to the jury, the court delivered the instructions of law, and the case was argued by the attorneys for both parties. In his argument to the jury appellee's attorney, Dent, stated that "he had not proved the statements he asserted in opening that he expected to prove to the jury, for the reason that the court would not permit him to do so, but that he could have done so if permitted, and that said statements were true." The appellant at the time, by his attorneys, objected and excepted to these statements, the court at the time of appellant's objections stating to said attorney for appellee, in a mild tone of voice, that such argument was...