April 22, 1929.
TRIAL. Argument referring to excluded testimony, and stating attorneys for defendants did not want jury to hear it, constituted reversible error.
Where, in action to recover damages for personal injuries sustained in collision between automobile and truck, objection to testimony of witness as to statement made by defendant in-reference to accident was sustained after being heard by the court out of jury's presence, argument of attorney for plaintiff, to effect that statement made to such witness would shed light on controversy and that attorneys for defendants did not want the jury to hear it, held to constitute reversible error, particularly since argument was repeated in substance after court had instructed jury to disregard it on objection thereto.
APPEAL from circuit court of Lauderdale county, HON. J.D. FATHEREE, Judge.
Amis, Dunn Snow, for appellants.
The argument indulged in by counsel representing the plaintiff was of highly prejudicial and improper nature. The jury was told that McWilliams had testified in their absence to a statement made by Freeman, one of the defendants; that the statement which McWilliams had testified about would have shed light upon the controversy which attorneys representing the plaintiff wanted the jury to hear; and which the attorneys representing the defendants did not allow the jury to hear. In effect, that this testimony was favorable to the plaintiffs, and they wanted the jury to hear it and same was detrimental to the defendant's case; that the testimony which McWilliams gave out of the presence of the jury was as to a statement made by one of the defendants immediately after the accident and that the defendant had then made a statement which would have hurt the defendants' case before the jury. When the court made an effort to neutralize the effect of this argument by instructing counsel to desist in his efforts to get before the jury testimony which the court had already held incompetent, counsel with great tenacity and determination disregarded the authority of the court and restated his theory to the jury saying: "The court says I cannot argue to you about the testimony which McWilliams gave out of your hearing, but you know you did not hear it because the defendants did not want you to hear it."
The effect of counsel's latter remarks was to say to the jury the court may tell you to not regard what I have just said above, but I recognize that you men are human beings and I recognize that when you get into the jury room you can consider any facts you may desire, notwithstanding the court's instructions, and when you get in there you will think about the witness McWilliams when he was on the witness stand, and you will think about his knowing some facts which you did not hear and which the plaintiff wanted you to hear, and which the defendants did not want you to hear. We are sure counsel's misconduct resulted from the heat of argument and not from a desire to disregard the court's instructions, but nevertheless the fact is that counsel in his argument introduced prejudicial error into the trial, and the defendants certainly were not responsible for the error and should not be called on to pay a judgment on a verdict rendered in a trial where such conduct took place. See Perkins v. Guy, 55 Miss. 183; Newman Lbr. Co. v. Morris, 130 Miss. 751, 94 So. 881; N.O. N.E. Ry. Co. v. Jackson, 142 Miss. 146, 105 So. 774.
Reily Parker, for appellee.
We have here a record showing that one of the defendants denied making certain statements and both of the appellants' witnesses disclaimed any recollection of other statements. Both of the witnesses offered by the appellee were questioned about the statement which the defendant Freeman had denied making, and counsel in their special bill of exceptions state that during the argument the attorney for the appellee stated that the defendant Freeman had made some statement to the witness McWilliams at the scene of the accident and immediately thereafter "which had some bearing on and shed some light upon the occurrence and which statements the defendants did not want the jury to hear, and that therefore it was detrimental to their defense;" that objection was made to this line of argument and that the court sustained the objection and instructed the jury to disregard the same and admonished counsel for plaintiff to desist from such argument and that after being so admonished, counsel for plaintiff continued by saying to the jury: "The court says I cannot argue to you about the testimony which McWilliams gave out of your hearing, but you know you did not hear it because the defendant did not want you to hear it." It is always difficult to remember with exactness just what is said in the course of the argument, and we have no recollection of this matter having been called to our attention except by the objection made at the time of the argument. There was certainly no disposition or intention to disregard the court's instructions regardless of the correctness of the court's ruling in the exclusion of the testimony offered. It was the understanding of counsel that the time the argument was being made that objection was being made not to the fact that appellants were unwilling for the testimony to be heard, but to the fact that argument was being made concerning the substance of such statement, and when the objection was made and so understood by counsel, he expressly gave recognition to the ruling of the court to that effect. No further objection was then made and the court took no further action therein.
The outline of the testimony in this case had disclosed to the jury the outline of the contentions of the parties and there was nothing offered in the case or suggested in the argument that reflected in any way upon the parties to the lawsuit, of a prejudicial nature, and the rule of the court as we understand it to be, places no condemnation upon a situation of this kind. See Stewart v. State, 64 Miss. 626, 2 So. 73; Schrader v. State, 36 So. 87; State v. Jones (La.), 24 So. 294; C. A.R.R. Co. v. Pillsbury, 5 Am. St. Rep. 483. The subject-matter of this argument and the subject-matter of the testimony referred to could not be and was not prejudicial to the appellant, and the trial court was correct in so holding, and there is certainly nothing in this record to make it manifest to this court that the trial court abused its discretion in this regard.
Argued orally by A.B. Amis, for appellant, and Marion W. Reily, for appellee.
Appellee, Albert John, a minor, by his father as next friend, instituted this suit in the circuit court of Lauderdale county against White's Market Grocery Company, T.J. White, Jr., and W.B. Freeman, seeking to recover damages for personal injuries alleged to have been sustained in a collision at a street intersection in the city of Meridian between an automobile, in which appellee was riding, and a Chevrolet truck belonging to said White's Market Grocery Company which was being driven by appellant W.B. Freeman at the time of the accident. At the conclusion of the testimony, the court directed a verdict in favor of the defendant T.J. White, Jr., but submitted to the jury the question of whether or not the other defendants were guilty of negligence which contributed to the injury of appellee, and from a verdict in favor of appellee for two thousand five hundred dollars this appeal was prosecuted.
The facts and circumstances leading up to, or surrounding, the collision are in no way material to the decision of the questions presented by the assignments of error, and therefore they will not be here set forth. The appellee offered as a witness one E.R. McWilliams, a policeman in the city of Meridian, who went to the scene of the collision a few minutes after it occurred, and offered to prove by this witness that the appellant W.B. Freeman there made some statement to him in reference to the accident. Upon objection to this testimony, the jury was retired from the courtroom, and the testimony of the witness as to the statement made to him by Freeman was heard by the court out of the presence of the jury. The court then sustained an objection to the proffered testimony.
Counsel for appellee, in his closing argument to the jury, referred to the fact that McWilliams had been offered as a witness on behalf of the appellee, and said to the jury: "This man, Freeman, made a statement to the Policeman, McWilliams, regarding this collision. That statement would shed some light upon this controversy, and the attorneys for the defendants did not want you gentlemen to hear it. They would not permit you gentlemen to hear it."
Thereupon, the attorneys for the appellants objected to such argument, and moved the court to instruct the jury to disregard same; the court sustained the objection, and instructed the jury to disregard the argument, and admonished counsel for appellee to desist from such argument. However, notwithstanding the instruction of the court to counsel, he immediately repeated, in substance, the same argument to the jury, saying: "The court says I cannot argue to you about the testimony which McWilliams gave out of your hearing, but you know you did not hear it because the defendants did not want you to hear it."
Thereupon, counsel for the appellants presented a special bill of exceptions embodying the foregoing facts in reference to the argument of counsel, and the same was approved by the court and made a part of the record, and, on appeal, one of the assignments of error is based upon this alleged improper argument of counsel.
We think this argument was prejudicial and requires a reversal of this cause. The jury was told that the witness McWilliams had testified out of their presence to a statement made immediately after the accident by one of the appellants, and that this statement would have shed light upon the controversy, but that they were prevented from hearing this testimony by counsel for the appellant. After being admonished by the court to desist from such argument in reference to testimony which the court had held to be irrelevant and incompetent, counsel persisted in this line of argument, and again impressed upon the jury that they had not heard the testimony of the witness McWilliams in reference to a statement made by one of the appellants immediately after the accident, because the appellants did not want them to hear this statement, thereby carrying to the jury the clear, emphatic, and unmistakable intimation that this statement was damaging to appellants' cause.
This argument, in our opinion, was more damaging than the admission of the statement would have been, as the jurors were thereby invited and left to speculate upon the nature of the statement made immediately after the accident by one of the appellants, which would have thrown light upon the controverted points, and which they were so anxious to prevent the jury from hearing.
We think the statement of counsel went far beyond the bounds of legitimate argument, and, for the failure of the court below to grant the requested mistrial, or to set aside the verdict and grant a new trial, the judgment entered will be reversed.
Other than the alleged excessiveness of the verdict, only one additional assignment of error is argued by counsel, and this assignment presents a question which, in all probability, will not arise on another trial of this cause, and therefore it will not be necessary to consider it.
For the error indicated, however, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.