Action to recover damages for an assault in which plaintiff had a verdict for $900. The assault was without justification, and recovery of compensatоry and punitive damages was sought.
The action originally was against defendant 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 separatе answers denying liability and appeared at the trial by separate counsel. There Avere 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 Avith 2 Mason Minn. St. 1927, § 9294, which proiddes that “if there be more than one party on а side, they shall join in any challenge made; except where the interest of two or more defendants are adverse, * * * each such defendant аnd party shall retain the right to three peremptory challenges.” In this case it affirmatively appears that the interests
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of defendants are not adverse to each other. Each defendant was not entitled to three peremptory challenges. Defendants were entitled to only three сhallenges as a side. Carr v. Davis,
Plaintiff’s counsel is charged with misconduct in introducing improper and prejudicial matters in the evidence. These matters сonsist of reference in questions put to witnesses by counsel, to defendant Frederickson as a “policeman,” as being a member of the “poliсe 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 hе was convicted of the assault. Much of the evidence Avas offered in an attempt to establish a case against the Oliver Iron 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 Avithout any objection by defendant Frederickson. Objection to the admission of evidence must be taken at the time the evidenсe is offered. An objection to the admissibility of evidence cannot be raised for the first time on motion for new trial or appeal. 6 Dunnell, Minn. Dig. (2 ed. & Supps. 1932, 1934) § 9728; Palmer Fruit Co. v. Palmer,
It is clаimed that plaintiff’s counsel Avas guilty of misconduct in his closing argument to the jury. His remarks Avere in, reference to the matters alluded to in the preceding seсtion. Some of the comments were severe and scathing denunciation of defendant Frederickson. No objection was taken to the remarks during thе 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 de
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fendant 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.
“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 Avhieh 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 Cо.
Counsel relies upon Ferraro v. Taylor,
A Dr. Malmstrom, who testified for plaintiff, was called also by defendants. In 1929 he had examined plaintiff for the Oliver company. He made notes of the examinatiоn, from which a Dr. Ewens prepared a report in duplicate, upon a typewriter, on a form provided for that purpose by the Oliver company, of which the original was sent to the company and a copy retained by Dr. Ewens as an office memorandum. The carbon copy was offerеd in evidence and excluded upon plaintiff’s objection. Then Dr. Malmstrom was permitted to use the memorandum to refresh his recollection. After examining it, he stated that his recollection was refreshed by it, and, using it for that purpose, he testified to the facts stated in the memorandum. If there was error in excluding the memorandum it was without prejudice because the matters contained in the memorandum were covered by the testimony of the doctor. Hawley v. Minneapolis St. Ry. Co.
It is claimed that the damages are excessive. This assault was the second one which defendant Frederickson committed upоn plaintiff, and it was a particularly brutal one. One of the Avitnesses stated that the Woav Avas a wide, aúcíous SAving, what he called “a haymaker.” As a result of the bloAv plaintiff sustained a deviated septum, which has made him subject to nasal obstructions, colds, and other discomforts. The trial court Avas of the oрinion that, Avhile the damages were liberal, they were not excessive. We concur in the views of the learned trial court. We find no reversible error.
The order is affirmed.