Opinion
Argued October 16, 1889
Decided October 29, 1889
Edgar L. Fursman for appellant.
Amasa J. Parker for respondent.
Upon the trial of this action the counsel for the plaintiff, while addressing the jury at the close of the evidence, was reading a portion of the answer when the counsel for the defendant objected upon the ground that it was not in evidence, and was inadmissible and immaterial under the stipulation in the case. The court overruled the objection and gave the defendant an exception. The plaintiff's counsel, thereupon, by permission of the court, continued to read the answer, or portions thereof, to the jury and also made comments upon it, the defendant duly excepting. The record before us does not disclose the nature of the comments made by counsel upon the answer, and for aught that appears they may have been moderate, fair and harmless.
The object of pleadings is to define the issue between the parties and when an issue of fact is tried before a jury they cannot appreciate the evidence, as it is given, unless they know the nature of the issues to be decided. Hence it is customary and proper for counsel, in opening, to tell the jury what the issues are as well as what they expect to prove. In some states the case is ordinarily opened by reading the pleadings. (1 Thompson on Trials, § 260.) The pleadings are before the court, not as evidence, but to point out the object to which evidence is to be directed. While a party sometimes formally reads in evidence the pleading of his adversary, or some part thereof containing a distinct and unconditional admission, no legal advantage is gained thereby, as the admissions, properly so-called, contained in an adverse pleading admit of no controversy and require no proof. ( Paige v. Willet, 38 N.Y. 28; White v. Smith, 46 id. 418; Cook v. Barr, 44 id. 156, 158; Fleischmann v. Stern, 90 id. 110, 114; Dunham v. Cudlipp, 94 id. 129, 133; Code Civ. Pro. § 522)
It is the duty of the court, in charging the jury, to state the issues of fact raised by the pleadings. While this is commonly done in a summary way by stating the precise questions of fact to be decided, no reason is perceived why it may not be done by reading and analyzing the pleadings, when they are not complicated, and thus pointing out the issues and the position of the respective parties. It is evident, therefore, that the established practice does not require that the contents of the pleading should be concealed from the jury, as improper evidence is required to be kept from their attention. On the contrary, as the pleadings mark the boundaries within which the proof must fall, counsel upon either side are permitted to point out where they claim those boundaries are, before they introduce their evidence. So, when summing up, they restate the issues in order to logically apply the evidence to them. If they do not agree as to the construction of the pleadings, a question of law is presented, and it becomes the duty of the court to construe them, to determine their legal effect and meaning, and to instruct the jury accordingly. In this case the answer was modified, but not superseded, by the stipulation and in order to state the issues and point out what was admitted and what denied, it was necessary to construe the complaint, answer and stipulation together. While the stipulation narrowed the issues to the injury inflicted upon the plaintiff and the amount of damages sustained by her, as it was alleged in the complaint, and not denied by the answer as modified, that she was precipitated with the falling bridge and train a distance of about thirty feet into the bed of the feeder, this became an admitted fact, important to be known by the jury, as it bore directly upon the extent of the injury. The fright naturally caused by being thrown that distance, amidst the crash of the breaking bridge and falling train, was also important.
Was it not within the discretion of the trial court to permit counsel, in summing up for the plaintiff, to call the attention of the jury to this allegation of the complaint, and to show by reading and by proper comments, fairly explaining the answer, that it was not denied? It does not appear that more than this, or that even as much as this, was done upon the occasion in question. We are not informed by the record how much or what part of the answer was read, nor what comments were made by counsel thereupon. The part read may have been unimportant, and the comments made may have been immaterial. No presumption of harm arises from the fact that a party has read a portion of his opponent's pleading to the jury, and has commented upon the same. Cases may arise where such a course, if allowed by the court after objection, would be palpably injurious and furnish good ground for an appeal, but in order to be available a complete history of the transaction, including all that was said and done, should be spread before the appellate court. Otherwise it would be unable to determine whether the alleged error was prejudicial or not.
If the court should permit an improper question to be asked, an exception based thereon would be worthless unless the answer of the witness was stated, as it might have been irresponsive and immaterial. Even if the record showed that the question was answered, the exception would still be unavailing, unless the character of the answer appeared. So the comments of counsel for the plaintiff in this case may have been injurious to the defendant, but they are not presumed to have been so, and as they have not been presented to us we are unable to determine whether they were or not.
This position is supported by the authorities so far as the subject has been before the courts. ( Willis v. Forrest, 2 Duer, 310, 317; Rowe v. Comley, 2 N.Y. Civ. Pro. Rep. 424, 427; Colter v. Galloway, supra; Boots v. Canine, supra.)
In a case recently before this court the record shows that "while addressing the jury, the counsel for the plaintiff was about to read to the jury a portion of the defendant's answer, when the defendant's counsel objected upon the ground that the answer was not in evidence and that it was improper to read the same; the court overruled the objection and the plaintiff's counsel read to the jury and commented upon certain parts of the answer, to all which the defendant's counsel duly excepted;" thus presenting a state of facts almost identical, with those now under consideration. The point was not regarded as of enough weight to reverse the judgment, as it was affirmed both by the General Term and the Court of Appeals. ( Huston v. Gilbert, 113 N.Y. 622; 40 Hun, 638.)
We have examined the exceptions relating to the admission of evidence, but found nothing that should disturb the judgment.
We have also considered the claim of the respondent that the court should award damages, by way of costs, for the delay caused by this appeal, under section 3251 of the Code of Civil Procedure, but as the appeal presented debatable questions that had not been settled at the time it was brought, we do not think that the application should be granted.
The judgment should be affirmed, with costs.
All concur, BRADLEY, J., in result, POTTER, J., not sitting.
Judgment affirmed.