JONES v. SETERA, 177 Or. 615 (1945)

164 P.2d 448

JONES v. SETERA ET AL.

Oregon Supreme Court.Argued November 21, 1945
Affirmed December 18, 1945

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, and LUSK, Associate Justices.

Appeal from Circuit Court, Multnomah County, FRANKLIN C. HOWELL, Judge.

Action by Cecil M. Jones against Dorothy Setera and another to recover damages for assault and battery. From a judgment for defendants, plaintiff appeals.

AFFIRMED.

William B. Murray, of Portland, for appellant.

No appearance for respondents.

KELLY, J.

Error is assigned because of the trial court’s denial of plaintiff’s motion for a mistrial, or, in lieu thereof, for an instruction to the jury to disregard remarks of defendants’ attorney describing one of the defendants as a poor woman, and asserting that, if judgment were given against defendants, it could not be wiped out in bankruptcy.

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None of the testimony appears in the record before us, therefore, we are unable to determine whether or not the course taken by counsel for defendants and the trial court, as reflected by plaintiff’s assignment of error, constituted prejudicial error.

Upon an appeal to this court from a judgment, the same shall only be reversed or modified for errors substantially affecting the rights of appellant. Section 10-810, Vol. 2, O.C.L.A. p. 256.

In all the cases cited by plaintiff, the testimony was before the courts in their consideration of the question of the effect of improper remarks by counsel.

It is obvious that, unless at least a prima facie case was presented by the testimony in behalf of plaintiff, her rights were not substantially affected by the remarks of defendants’ attorney. So also, may the same thing be said, if the testimony in behalf of defendants was convincing to the extent of showing that defendants were blameless.

The judgment of the circuit court is affirmed.

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