of the court, we do not feel that we would be justified in holding the errors prejudiced the defendant's case. 4. One Murphy had testified in behalf of the plaintiff. On account of his intoxicated condition, defendant, in the absence of the jury, moved that his testimony be stricken, which was consented to by plaintiff. However, when the court in the presence of the jury granted defendant's motion, counsel for plaintiff stated: "We have no objection, and at this time we wish to have the record show that it is our loss rather than our gain." This remark of counsel is assigned as misconduct and prejudicial. We We agree that counsel in consenting to the expunging of the Murphy testimony was, in good practice and ethics, forestalled from making adverse comment thereon. He showed himself a poor sport and evinced a dis Appeal-remark of counselfailure to affeet verdict. position "to blow hot and cold" at the same time, for which he should have been rebuked by the court. But, again, we are not satisfied it affected the jury's verdict. 5. The defendant complains of the court's refusal to dismiss the jury and declare a mistrial for misconduct of plaintiff while a witness. After the jury was inpaneled and sworn to try the case, plaintiff was placed upon the stand to testify in his own behalf. His counsel asked questions of him and he made answer as follows: "Your name is Joe Berd? "Yes, sir. "And you are the plaintiff in this case, Mr. Berd? "Can't talk. "What is that? You are the plaintiff, the man named as the plaintiff in this action against Tom Reed? "I understand all right. I can't talk. "Perhaps he doesn't understand. Beg pardon? How old are you, Mr. Berd? "I can't talk-nervy. "Beg pardon? "I will pretty quick. "Now, Joe, if you will just take your time. Maybe you are a little alarmed at being on the witness stand. Maybe you are a little alarmed. I think I will ask you the question again. "Please let me go." At this point, because of the condition and behavior of plaintiff, the court suggested that a recess be taken, which was done. At the resumption of the trial the following day defendant moved that a mistrial be declared and the jury discharged because the plaintiff, when called to testify the day before, by his demonstration of weeping, wailing, and his motions, and all, had unfairly impressed the jury, making it impossible for the defendant to have a fair trial. In passing upon the motion and in refusing to grant it, the court said: "I do not think that the demonstration was intentional at all, but I do think it is a very unfortunate situation to put before a jury-to have occurred. I do not think it was intentional on the part of counsel. I think counsel was just as much surprised as I was; and I do not think it was intentional on the part of the plaintiff." "It was a very unusual incident to have appeared in the court room, and it is quite a question as to what effect it would have on the minds of the jury." 66 So far as it being intentional, I do not think it was. I think the man was highly nervous and sick. He should be drawing $1,000 a week from the movies." Theatricals in a court of justice are to be deplored. A litigant witness should make no unseemly demonstration nor affect or assume conduct whose only tendency is to excite the sympathy of the jury or the court. Whether his action was spontaneous and uncontrollable, or feigned, it was certainly highly exciting, so much so as to cause the presiding judge to remark his fitness for moving pictures at the handsome salary of $1,000 a week. We think with the trial judge plaintiff's conduct was unfortunate, but the human equation enters into every trial. It is a well-known fact that juries hesitate to condemn young and beautiful women defendants. It is also known that such defendants affect mannerisms and also dress to excite or win sympathy. While juries refuse to convict such defendants, if they are plaintiffs, asking for damages for the death of a husband, large verdicts result. All litigants are actors and say and do the things, according to their lights, most likely to win favor for their cause. Whether the plaintiff was affecting hysteria or was sincere was a question for the jury. If he put on his demonstration of weeping and wailing to win sympathy, the jury, as common-sense men, could possibly detect it, and, if honest men, reject it. If, on the contrary, his action was uncontrollable, they might sympathize for him and still be guided by the evidence on the issue of his claim for damages for injury. Counsel cite us to no case involving facts like the ones here, and after some search we have been unable to find any. While we are impressed that the rule just stated is sound and should be generally followed, we cannot but feel that in the exercise of a sound discretion the court might well have discharged the jury and called another, free from the possible unmerited sympathy that might have been occasioned by the unfortunate conduct of plaintiff. No doubt, the impression made by plaintiff's conduct lingered with the jury throughout the case, and, honest men though they were, might have been a determining factor in their verdict. However, the court felt otherwise. He had the whole situation under observation, and we do not feel that we in that during the trial, both while he was testifying as a witness and while he was not a witness, he constantly and repeatedly reclined upon the floor in a sitting posture, with his back against the railings, in plain view of the jury, and from time to time would get up in his chair and again recline on the floor. That plaintiff did these things there can be no question. The statement of his conduct was dictated into the record by defendant's counsel and approved by the court. That the court observed his actions is evidenced by this question and answer: "Joe, can't you sit up on the witness chair? "I feel whole lot better over here because I am too nervous. Nervous, nervous all the time." Again, when defendant was making a record of plaintiff's conduct, the court said: "I noticed the plaintiff sitting there on the floor several times, and I wondered why counsel for either side didn't say something about it. I didn't mention it because I didn't want to interfere in the case, but it is very unusual.” From the record, we have a plaintiff, at the very beginning of the trial, creating a scene of an unusual kind by cries and wails and asserted inability to talk, compelling a court recess, bad enough in itself, but which the court, in its discretion, held insufficient to discharge the jury and declare a mistrial. Then, upon the resumption of the trial, and throughout the trial, we find the plaintiff leaving the witness chair, proclaiming to the jury that he was nervous, and reclining upon the floor and against railings. Perhaps it should be granted it was the duty of defendant to have complained to the court of this conduct and insisted on plaintiff's remaining in the witness chair while testifying and in a chair beside his counsel when not on the stand, instead of doing the unusual and unseemly thing of sitting and reclining upon the floor, and thus impressing the jury that his actions were necessary (—— Ariz. —, 260 Pac. 191.) because of his injured condition. But by failing to call the attention of the court to what was palpably a violation of decorum, as easily seen and understood by the court and plaintiff's counsel as any one else, did the defendant waive such misconduct? We think it was more the duty of plaintiff's counsel and the court to see that plaintiff properly demeaned himself than it was the defendant's duty. The defendant had no control over plaintiff, whereas, presumably, his counsel did. The court could have compelled plaintiff to properly conduct himself, and, what is more, it was the court's duty, without being asked to do it, to demand and require orderly conduct of plaintiff. The record fails to show that it was necessary for plaintiff to sit or recline on the floor and against railings, or that it was even more comfortable for him to do so, unless his oft-repeated assertion that he was nervous established that fact. It does appear from his testimony that after his injury he was able to move about, drive an automobile, do some farming and storekeeping; that he went to Phoenix and conducted a store some 6 or 7 months, between the time of the alleged injury and March, 1925; in fact, while he says he was suffering all this time, he was, we gather, fairly active. We conclude, not for one, but for the many errors that have crept in to the record, the defendant is entitled to a new trial free from these We have the more readily come to this conclusion for these reasons: The injury of which plaintiff complains is internal and invisible. An X-ray picture taken in August, 1924, shortly after he claims he was injured, was negative in its findings; likewise one taken in November, 1925. Dr. White, of Kingman, who took both pictures, testifying for the defendant, said he made a cursory examination of plaintiff in August, 1924, when he took the first picture, and that he did not think plaintiff had on his person any black and blue spots, or cuts, or contusions, and that there were no visible evidences of injury when the last picture was taken in November, 1925, but that plaintiff gave some evidence of tenderness in his back. Dr. Todt, also of Kingman, saw the picture taken in November, 1925, and, testifying for plaintiff, agreed with Dr. White that it showed nothing the matter with plaintiff, but stated that in the examination they (he and Dr. White) found plaintiff had an exaggerated knee reflex due to nervous irritation, and there is evidence that this nervous condition might have been caused by the accident plaintiff claims to have suffered. The injury complained of could not be seen or photographed; it was invisible, hidden. Notwithstanding, it might have been real. If so, it was capable of proof, and, like any other fact necessary to a cause, should be established by competent and relevant evidence. It could not be exhibited to the jury like an injured or broken leg or a lost eye. There was no optical evidence of the injury itself. Whether there was an injury, its character and extent, were questions for the jury to decide, and this decision should be based upon legitimate evidence. That there was competent evidence tending to establish that plaintiff was hurt at the time, place, and in the manner claimed, and that the injury was substantial, is not questioned. However, it consists largely of the testimony of plaintiff. Some things appear in the record that cast suspicion on the sincerity of plaintiff's conduct during the trial, and induces the belief that it all might have been done for the purpose of working on the jury's sympathy. If, in the 22 months between the accident and the trial, any one ever saw plaintiff suffering from hysteria, or heard of it, it was not shown. Neither was it in evidence that during that time he was in the habit of changing at short intervals, as at the trial, from a sitting to a reclining posture for com fort, or ease, or anything else. On the other hand, we have learned from him that soon after his alleged injury he left Kingman and went to Phoenix, where he conducted a store for 6 or 7 months; that he then returned to Kingman and went upon a fruit orchard and did light work; that at no time did he place himself under the regular care of a doctor for treatment until just before and during the trial, when he secured the professional services of Dr. Todt. It seems to us that a large part of the evidence presented to the jury to make out his case was the erratic conduct of plaintiff, and that it might have been adopted for the purpose of exaggerating his injury. That he was sophisticated in the matter of claiming damages appears from the fact that in 1923 he brought suit against the Miami Copper Company, of Miami, for damages to his ear; against the Old Dominion Copper Company, of Globe, for damages for injury to his back in March, 1924; and at an earlier date claimed damages of the Copper Queen for an injury to his head. When, however, he was asked if he had ever made "claim for compensation or damages" he answered, "Never," and only admitted he had when confronted with the record or witnesses cognizant of the facts. with error as to reWe think the record is so shot quire a new trial. misconduct of The order is that plaintiff. -reversal for the judgment be reversed, and the cause remanded. Lockwood and McAlister, JJ., con cur. ANNOTATION. Conduct of party in court room tending improperly to influence jury as ground for reversal or new trial. Introductory. [Appeal and Error, § 923; New Trial, § 40.] This annotation, in reviewing the cases involving the conduct in the court room of a party to an action as ground for reversal or a new trial, because tending improperly to influence the jury, excludes cases involving the mere giving of improper evidence, but does include cases involving a party's demeanor and conduct while on the witness stand. In a number of the cases wherein the question has arisen whether the conduct of one of the parties to an action during the course of the trial has furnished ground for a new trial as tending improperly to influence the jury, the courts have refused to disturb the verdict, on the ground that the matter was one within the discretion of the trial judge, and that his decision with respect thereto would not be disturbed in the absence of a clear showing of abuse of discretion. No other general rule can be formulated from the cases, each of which rests on its own facts. The cases have therefore been classified according to the nature of the conduct, generally speaking, which has been the subject of complaint before the courts. Weeping. It has been held in several cases that the conduct of a party to an action, in weeping or crying in the court room, did not justify a new trial, where it did not clearly appear that such conduct improperly influenced the jury. In Timmerman v. Frankel (1913) 172 Mo. App. 174, 157 S. W. 1051, an action to recover damages for personal injuries, the court sustained the trial court in its exercise of discretion in overruling a motion to discharge the jury, because the plaintiff, a poor working girl sixteen years of age, had wept in court during examination. The court said: "The court overruled the motion to discharge the jury, 'for the reason that it does not believe that the action of the plaintiff was such that it would unduly influence the jury in her favor and against the defendants, and has instructed plaintiff's attorney to caution her that she must refrain from crying in the presence of the jury.' . . . Evidently the trial judge believed these outbursts of plaintiff were due to her nervousness, and were spontaneous. We realize that his opportunity for judging of the true cause of the emotional display was superior to that we possess, and adopt his conclusion that plaintiff was not actuated by an interested motive. She had the right to testify in her own behalf, and if her nervous condition was such that she could not control herself, we would hold that her uncontrollable, and therefore innocent, exhibition of nervousness was a fact the jury were entitled to have before them as one of the relevant and material facts of the case. If her face had been disfigured, or if she had lost an arm, no one would contend that it would have been improper for her to appear as a witness and exhibit such injuries to the jury. Or, if she had become an epileptic in consequence of the injury, the fact that the disease attacked her while at the trial would have been no ground for discharging the jury. To have given ground for such judicial action plaintiff or her counsel must have been guilty of improper conduct, i. e., must have done something from an interested and improper motive designed to prejudice the jury in her favor." The refusal of the trial court to discharge the jury in an action for personal injury because the plaintiff, a young man twenty years and six months of age, wept when questioned about the circumstances of the accident, which occurred nearly two years before the date of the trial, was held in Boyer v. Missouri P. R. Co. (1927) - Mo., 293 S. W. 386, not to be an abuse of discretion in the circumstances. The court said that such an occurrence is one which calls for the exercise of a sound discretion by the trial court, and, unless it appears there has been an abuse of discretion, the refusal to discharge the jury will not be disturbed. In Re Hinton (1920) 180 N. C. 206, 104 S. E. 341, the court held that the trial judge did not abuse his discretion in refusing to grant a new trial because the plaintiff on the witness stand displayed deep emotion, even to the extent of being driven to tears by the story she was relating. The refusal of a trial court to discharge the jury for the conduct of the plaintiff in shedding tears in the presence of the jury, in an action for damages for the death of his son, was upheld in Edwards v. Metropolitan Street R. Co. (1910) 143 Mo. App. 371, 127 S. W. 605, wherein the court said: "The mere shedding of tears by the father of the dead boy was a very natural consequence, under the circumstances, and perhaps unavoidable. It was something over which the court had no control. And it might occur on any number of trials, depending, however, upon the emotional nature of the individual. It was one of those things that cannot be helped, but must be endured." In Connell v. Seattle, R. & S. R. Co. (1907) 47 Wash. 510, 92 Pac. 377, an action to recover damages for personal injuries, it was held that there was no misconduct of the plaintiff justifying a new trial, where it appeared that she burst out crying, and was taken from the court room, at the end of a very long trial. The court said that it was reasonable to assume that the outburst was due to her nervous condition resulting from the injuries, and that the trial, especially the defendant counsel's argument at the time of the incident, involved criticism of her to such an extent that, as a nervous woman, she was overcome in the manner indicated. In Connor v. Kansas City R. Co. (1923) 298 Mo. 18, 250 S. W. 574, it appeared that the plaintiff in an action to recover for personal injuries was suffering from emotional disorders from the injury, and could not control herself from weeping and showing her nervous condition while before the jury. The appellate court held that there was no error in denying a new trial, saying: "The record does not show error in refusing to discharge. the jury because of respondent's conduct while testifying. The testimony was that her tendency to tears was |