Civil Procedure-Trial Practice-Introduction of Inadmissible Evidence to Cure Improper Argument by Counsel

In a suit to recover damages for wrongful death arising out of an automobile accident, plaintiff's counsel offered in evidence the official report of a police officer, which included the officer's opinion that defendant's parked car had contributed to the collision. Defendant's objection to this evidence was sustained on the grounds that the report was hearsay and that it set forth a conclusion which only the jury could draw. Defendant's counsel, during his summation, asserted that no police officer had said that defendant's car had in any way caused the accident. The court, sua sponte, admitted into evidence the officer's report which had previously been excluded.

On appeal from a judgment for plaintiff, held, reversed and remanded for a new trial. The trial judge abused his discretion by admitting previously excluded evidence in order to cure a misleading argument by counsel in his summation. Harrington v. Sharff, 305 F.2d 333 (2d Cir. 1962).