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SIDNEY J. MAGISTAD v. C. M. POTTER AND OTHERS. CHICAGO NORTH WESTERN RAILWAY COMPANY AND L. E. PETERSON, APPELLANTS. Reported in 36 N.W.2d 400.

Trial — prejudicial remarks of counsel — failure to take exception — duty of trial court to take action on own motion.

1. Though exceptions to prejudicial remarks to the jury were neither taken at the time they were made nor at the close of counsel's argument, as permitted by the district court rule, this court regards those here under consideration as so calculated to arouse prejudice and passion that it was the trial court's duty to take action thereon on its own motion.
Appeal and error — extent of review — orders denying judgment notwithstanding — issues requiring new trial.

2. This court refrains from passing upon the orders denying motions for judgment notwithstanding the verdicts, for the reason that the issues of fact are such that on a new trial further evidence may affect the question of recovery on the merits.

PER CURIAM.

In this action for personal injuries, separate verdicts of $45,000 each were rendered in favor of plaintiff against the defendants Chicago North Western Railway Company, L.E. Peterson, and C.M. Potter, individually and as sole trader as the Potter Grain and Fuel Company. The case is here on separate appeals denying their motions for judgment notwithstanding the verdicts or a new trial.

Error is assigned on misconduct of counsel for plaintiff in his argument to the jury. Since this court takes the view that a new trial must be granted on that ground, we refrain from passing upon the motions for judgment for the reason that the issues of fact are such that there may be further evidence introduced on another trial which may affect the question of recovery on the merits. 3 Dunnell, Dig. Supp. § 5082, and cases cited under note 8.

Exceptions to counsel's remarks to the jury were neither taken at the time they were made nor at the close of his argument, as permitted by the district court rule, but only after the court had charged the jury. However, we regard the argument as so prejudicial and so calculated to excite prejudice and passion that the trial court, of its own motion, should have taken action upon it. The accusations of perjury against plaintiff's witnesses by defendants' counsel were not sufficient provocation to justify the misconduct. The court did not take action. Consequently there must be a new trial.

Orders reversed.

PETERSON, JUSTICE (dissenting).

I dissent upon the authority of Eilola v. Oliver I. Min. Co. 201 Minn. 77, 275 N.W. 408.

MR. JUSTICE THOMAS GALLAGHER took no part in the consideration or decision of this case.

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MAGISTAD v. POTTER
(Feb 18, 1949)