delivered the opinion of the Court.
Thе plaintiffs-appellees, Estelle Metzger and her husband, William Metzger, brought suit on January 11, 1963, against the defendants-apрellants, Artis Leach, driver of a taxicab, and Irvin Edelstein t/a Checker Cab Association Inc., for damages
At issue on this appeal are the questions: (1) did the trial court commit error in refusing the appellants’ request for a mistrial because of the use by plaintiffs’ counsel of a “golden rule” 1 аrgument to the jury when the trial judge immediately instructed the jury to disregard that argument and re-instructed the jury as to the correсt measure of damages, and (2) did the trial court err in its denial of appellants’ motion for a new trial based on thе alleged excessiveness of the jury’s verdicts.
At the trial the jury heard expert testimony from a doctor to the effеct that Mrs. Metzger had, as a result of the accident, suffered an estimated 40% permanent disability due to injuries to her nеck and that her injury would require therapy over a long period of time. Mrs. Metzger testified that as of the day of trial, shе was still enduring pain in her neck which had affected her ability to sleep. She described that pain as a feeling thаt the flesh was being pulled from the bone. William Metzger testified that after the accident his wife’s activities were limited, that she was in constant pain and as a result he was required to do household chores which would have otherwise bеen performed by his wife. Doctors’ bills paid by the husband totalled $430, and the wife’s wages lost consequent to the accident amounted to $232.
After evidence as to the damages suffered had been presented, the trial judge properly instructed the jury as to the various elements to be considered in ascertaining what dollar figures would properly compensate the appellees. Plaintiffs’ counsel, Mr.
“(Mr. Swerdloff) Counsel for the Plaintiffs has just stated to the jury that they must put themselves, basicаlly, in the place of the Plaintiff and award damages as if it had been them involved in the accident. In fact, he said you must put yourselves in the place of these people, and I respectfully request—
“(The Court) He said as though it was your wife.
“(Mr. Swerdloff) I stand correсted. I submit that is an argument which is basically Golden Rule argument, is improper, outside of the scope of the evidenсe, and I respectfully request the Court for a mistrial.
“(The Court) I deny that, but I shall admonish the jury that is not proper argument.
“(Mr. Swerdloff) Thank you, sir.
“(The Cоurt) Members of the jury, an objection has been made, and properly so, to the argument that Mr. Klauber has just made thаt you are to consider the situation as though, in effect—I think that is what he said—as though it was your wife involved. That is not the test, and really that’s not proper argument. I have told the jury the elements they may consider for the determination of this сase, and I am sure they will follow that instruction. It isn’t a question as though it’s your wife, anybody else’s wife, you or anybody else. It’s a question of what is fair and reasonable and proper compensation, based on the evidence and thе instructions you have received. * *
Although no Maryland cases have specifically so held, arguments, such as the one apparently made by appellees’ counsel, which urge jurors to deal with counsel’s clients as they wоuld wish to be dealt with if they were in such client’s position, are improper. The vice inherent in such argument is that it invites the jurors to disregard their oaths and to become non-objec
We do not find, however, that the trial judge in the instant case committed reversible error in failing to grant a mistrial after the use of this improper argument, because he promptly and unequivocally instructed the jurors to disregard the argument, and as well succinctly reminded thеm of his earlier instructions, to which no objection has been made. In
Esterline v. State,
“If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally сarried away by this temptation.”
Having an opportunity to hear the attorney as well as to appraise the effect of his words on the jurors before him, the trial judge is of necessity empowered with wide discretion in deciding whether the prejudicial effect of counsel’s remarks can be erased by corrective instructions or if a mistrial is required.
Capitol Traction Co. v. McKeon,
The second question raised by the appellants requires little discussion because it is well settled that the granting or refusal of a new trial, conditional or otherwise, is not reviewable by this Court except under extraordinary circumstances.
State, Use of Shipley v. Walker,
Judgments affirmed, with costs.
Notes
. The allusion is to the saying attributed to Jesus in Luke 6:33, “As ye would that men should do to you, do ye also to them likewise.”