Hastings, Fairchild and Kerner, Circuit Judges.
These cases come before this court on appeals from two separate trials in the district court and an appeal from an order assessing costs and attorneys' fees in the first of the two trials.
Plaintiff-appellee Kiefel and her husband*fn* purchased a package air travel and hotel plan to Las Vegas in February, 1962. They were lodged in Room 315 of the Las Vegas Hacienda. On the evening and morning of February 28-March 1, 1962, plaintiff and her husband visited three night club shows and consumed several drinks. Returning to their hotel, another drink was had at the bar and plaintiff went off to their room to bed, while her husband remained in the casino stating he remained there until 6:30 a.m. Sometime before 5:20 a.m. someone entered Room 315 and attacked plaintiff, striking her on the head with a bottle of champagne, fracturing her skull and causing severe facial lacerations.
The complaint and amended complaint are founded in contract and tort for failure of defendant, Las Vegas Hacienda, to provide a reasonably safe sleeping room accommodation resulting in the personal injuries to plaintiff.
The first trial was heard by the Honorable Edwin A. Robson. After the jury returned a verdict for the defendant, plaintiff filed a motion for a new trial based on defense counsel respondent-appellant Reese Hubbard's alleged acts of misconduct. The court granted the motion and filed an opinion, Kiefel v. Las Vegas Hacienda, Inc., 39 F.R.D. 592 (N.D.Ill.1966). The question presented by this appeal is whether the acts of misconduct were such as to require a new trial.
Plaintiff-appellee cited in her brief on appeal no less than ten items of misconduct involving the first trial and the pre-trial discovery as well as six additional items of misconduct at the second trial. With respect to the first trial, Judge Robson's opinion relied on two of the ten items of misconduct as individually requiring a new trial and further found that the remaining misconduct, when "viewed cumulatively, in conjunction with the aforestated acts, are more than sufficient to make the court conclude that the plaintiff was not accorded a fair chance to present the facts of her case to the jury." 39 F.R.D. at 593.
The first of the specific acts was the inclusion of statements in Hubbard's opening remarks to the jury which the court found to be capable of inflaming the jury, 39 F.R.D. at 595. The second of the acts was the failure to file a deposition in the case together with causing the reporter who took the deposition to be unavailable as a witness at the trial. 39 F.R.D. at 596.
The motion for a new trial asserted other misconduct including 1) making assertions of facts not proved, 2) attempting to improperly influence the jury by the introduction of statements into argument on matters not in evidence under the pretext of laying a foundation for impeachment which were never offered, 3) examining witnesses on an exhibit which was never offered in evidence, 4) repeatedly making known meritless objections both in the trial and pretrial phases of the case for the purpose of harassment, 5) falsely stating to the court that he did not have a deposition which he apparently had under his control and probably was in his own office, and 6) objecting to the introduction of a deposition on the ground that he did not authorize it when it was taken under order of court entered after an agreement made by his co-counsel. In response to some of these acts, the court noted, 39 F.R.D. at 596:
As plaintiff points out, the Canons of Professional Ethics proscribe argument asserting as a fact something which had not been proved, or the introduction of statements into argument with intent to influence a jury (Canon No. 22).
Whether on the basis of the two specific acts discussed by the court or the other acts viewed cumulatively, it is clear that Judge Robson was correct in granting the motion for a new trial. The legal authority set out in Judge Robson's opinion is sufficient to support his determination. 39 F.R.D. at 594-595. In addition to that authority, we rely on Mangan v. Broderick & Bascom Rope Co., 351 F.2d 24, 29, 31 (7th Cir. 1965), Ryan v. Monson, 33 Ill.App.2d 406, 412-413, 415-417, 424, 179 N.E.2d 449 and 427-428 (1st Dist. 1961), and Cline v. Kirchwehm Bros. Cartage Co., Inc., 42 Ill.App.2d 85, 191 N.E.2d 410 (1963), all cases in which new trials were ordered due to improper trial tactics and unprofessional conduct on the part of the present respondent. We find that Judge Robson was correct in holding, 39 F.R.D. at 596:
The court is convinced that because of the unprofessional tactics of Reese Hubbard, counsel for defendant, the plaintiff did not have a fair trial. Counsel for defendant is a lawyer who has had long and extensive trial experience. These years in the court should have taught him compassion and a sense of fair play. Instead, he seeks to use his experience to assert and apply every sly trick and stratagem to win his case. He does this with the hope that he can stay within the bounds of professional ethics. In this instance, he has far overstepped the bounds. This court finds that his trial tactics were such that the jury might or could have been influenced by his unfair actions and as a result found for the defendant.
The motion for new trial is granted.
Accordingly, we affirm the decision of the district court granting plaintiff-appellee's motion for a new trial.
After the conclusion of the trial before Judge Robson, the plaintiff filed a motion to assess costs and attorneys' fees against defendant Las Vegas Hacienda, Inc., and Reese Hubbard jointly and severally. The court entered a judgment order against defendant and counsel in the sum of Eight Thousand One Hundred Seventy-one Dollars and Fifty-six Cents ($8,171.56) consisting of Six Thousand One Hundred Dollars ($6,100.00) in attorneys' fees and Two Thousand Seventy-one Dollars and Fifty-six Cents ($2,071.56) as costs, and itemized as follows:
(a) James A. Brandvik, the sum of -- $2,000.00
for the trial of this cause;
(b) Lowell H. Jacobson, the sum of -- 3,000.00
for the trial of this cause;
(c) James A. Brandvik and Lowell H.
Jacobson, for services in connection
with the post-trial motion -- 1,000.00
(d) James A. Brandvik, attorney's fees in
connection with the Las Vegas deposition
of Sharon Hamlin -- 100.00
Total Attorneys' Fees $6,100.00
(a) Claude Youker, reporter's bills -- $947.15
(b) Graham & Associates, for service of
summons on expert witnesses, mileage
and advancement of witness fees -- 101.80
(c) Court Reporter Stella Butterfield for
copy of Sharon Hamlin deposition not
previously filed -- 17.25
(d) Expert witness fees for plaintiff's ex-