Augusta & Summerville Railroad v. Randall & Wife , 85 Ga. 297 ( 1890 )

Simmons, Justice.

Randall and his wife sued the railroad company for damages sustained by reason of Mrs. Randall being thrown from a horse-car, and they recovered a verdict against the company. A motion for a new trial was made upon the several grounds set out therein, which will be found in the official report.

1. There was no error in excluding the affidavit made by Miss Klotz shortly after the alleged injury to Mrs. Randall. It was not attached to her depositions as a part of her answers thereto, and was offered as independent evidence, she having testified that the statements therein were true. If admissible at all, the affidavit should have been attached to her depositions and returned with them by the commissioner appointed to take them.

2. There was no error in excluding the testimony of the president of the company as to the degree of care exercised by the officers of the company prior to this accident in the selection of drivers. The question at issue was whether the driver was negligent upon that particular occasion.

3. N or was there any error in excluding the testimony of a witness upon a former trial, as complained of in the third ground of the motion. The proof as to his death or inaccessibility was not sufficient.

4. There was no error in admitting in evidence on redirect examination of plaintiff the depositions of Annie L. Noung, as complained of in the fourth ground of the motion, the objection thereto being that it was not in rebuttal. Whether in rebuttal or not, it was witliiu the 'discretion of the court to allow it, and we do not think that he abused his discretion.

5. The next ground complains’that the court refused to compel two female witnesses to come into court and testify, or to continue the case in order that their.interrogatories might be taken. Under the facts as stated in this ground of the motion, we do not think the court erred either in refusing to compel the two females to attend court, or in refusing to continue the ease that their interrogatories might be taken. It was not shown to the court in a proper manner what the witnesses would testify, or the materiality of that testimony. This not being done, the court was right in refusing to compel the witnesses to attend, and in refusing to continue the case. -We do not agree with the court, however, in the reason assigned by him for not compelling the attendance of the witnesses. "We think every court, in the furtherance of justice, has a right to compel any witness within its jurisdiction to attend court and testify. In the case of female witnesses, we think that some good reason should be shown to the court why it is necessary for the females to attend in person, what they will testify, and the materiality of their testimony. If, upon this showing, the court is satisfied that it is necessary, in the furtherance of justice, for the female witnesses to attend court, he should issue an order requiring them to attend and testify in the. case. The statute does not exempt females from attendance upon court; it simply permits their interrogatories to be taken. But while this is true, this provision of the statute should be followed unless it is shown to the court that it is necessary to have the personal attendance of the witnesses.

6. The sixth ground of the motion recites that in the argument before the'jury,-defendant’s counsel stated that they had heard what had transpired in reference to Mrs. Bunch’s testimony; that he was unable to say what effect that testimony would have had, but desired to call the attention of the jury to the fact that defendant and its counsel had done everything in their power,' as the jury saw, to have her brought into court, as they deemed it of great importance to have had her present. In conclusion, counsel for plaintiffs said to the jury that they also were anxious to have had Mrs. Bunch’s testimony before them, she and Mrs. Rivers being the most important witnesses they had; that in his (counsel’s) opinion, but for the unwarrantable interference on the part of Mosher (the defendant’s superintendent) with the witness, Mrs. Bunch, he had no doubt she would have kept her promise and would have been in court promptly that morning; that the methods employed to keep the witnesses away were reprehensible in the extreme ; that he exonerated his friend, the president of defendant, of any responsibility, but charged it on Mosher, the superintendent; and that but for this tampering with the witness, he believed that she would have been present. Here defendant's counsel stated that there was no evidence to warrant the statement that Mosher had tampered with the absent witness; to which plaintiff’s counsel replied that-he did not claim that there was any such eviderice, but simply drew an inference from what had transpired before the court and jury. The court said he did not think counsel was authorized to make the statement without evidence; upon which plaintiff’s counsel withdrew the statement, and continuing said to the jury: “ At all events, gentlemen, I believe before high heaven that if Mr. Mosher had not paid this visit to our witness this morning, she would have fulfilled her promise and would have come to court and testified in the case. It would be improper for me to say what she would have testified to; but we deemed her testimony important, in fact our most important witness, and were very anxious to have ber present.” "We think the court erred in refusing to grant a new trial upon this ground. We think the remarks of counsel- for the plaintiffs in his concluding speech to the jury were calculated t® and doubtless did prejudice the minds of the jury against the defendant. The charge was positively and distinctly made that the superintendent of the defendant had tampered with the plaintiffs’ witness and had prevailed upon her not to attend court and testify. Although, when corrected by the court, counsel withdrew the statement, he asserted afterwards that he “ believed before high heaven” that if Mosher had not paid this visit to his witness, she would have fulfilled her promise and have come to court and testified in the case; that her testimony was most important, in fact she was the most important witness he had, and he was anxious to have had her appear. There was not a scintilla of testimony, so far as this record discloses, that Mosher had tampered with the witness. There was nothing to authorize such a statement save the charge made by counsel in the morning, not under 'oath, that Mosher had tampered with the witness, which was denied by defendant in like manner. The defendant also sought to introduce Mosher as a witness to testify under oath for the purpose of refuting the imputation cast upon him and his company. This was refused by the court. It is insisted, however, that defendant’s counsel was also out of order in his remarks to the jury which are quoted above, and that therefore plaintiffs’ counsel was entitled to reply. We think the remarks of defendant’s counsel were improper, but do not think they justified plaintiffs’ counsel in his remarks. If he had confined himself to a strict reply to the remarks of defendant’s .counsel, and insisted only that he too desired the presence of the witness, this would not have been sufficient to have authorized and demanded a new trial in this case. But it will be seen that he went much further in his remarks than a simple reply to the remarks of defendant’s counsel. He charged the defendant, through its superintendent, with tampering with the witness and preventing her attendance upon the court. This must have been very prejudicial to the defendant in the minds of the jury. Judge Thompson, in his most excellent work on “ Trials” (vol. 1, §§963, 965), which is instructive to both bench and bar, lays down the following rule : “ It is scarcely necessary to suggest that, in every judicial trial, a party must present his evidence either by the testimony of witnesses who are under oath, by the exhibition of documents which are competent under the rules of evidence, or by the exhibition of such material objects as are connected with the res gestae and speak with reference to the issues on trial. He cannot be permitted to pi’esent his evidence in the form of the argument of his counsel to the jury, who is not sworn to speak the truth as a witness in the particular case. All courts, therefore, unite upon the conclusion that where counsel, in their argument to the jury, make statements of prejudicial matters which are not in evidence, it will afíord ground for a new trial, unless the error is cured before the cause is finally submitted to the jury, in the manner stated in the preceding paragraphs. It is a necessary part of this rule that the matters thus improperly stated by counsel to the jury in argument should, in view of the issues on trial, the status of the parties, their attitude toward each other, and the like considerations, be, in their nature, of a tendency to prejudice the cause of the- opposing party in the minds of the jurors. Where such statements, though of matters not in evidence and hence improperly made, are immaterial or at least not prejudicial, they will aflord no ground for a new trial. . . . On this subject it was said by Fowler, J., in what has come to he regarded as a leading case: The counsel represents and is a substitute for his client; whatever, therefore, the client may do in the management of his cause may be done by his counsel. The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the cause, both as to law and the facts, is unabridged. The range of discussion is wide. He may be heard in argument upon every question of law. In his address to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings ; to arraign the conduct of the parties; to impugn, excuse, justify or condemn motives, so far as they are developed in evidence, assail the credibility of witnesses when it is impeached by direct evidence or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. To this freedom of speech, however, there are some limitations. His manner must be decorous. All courts have power to protect themselves from contempt, and indecency in words or sentences is contempt. This is a matter of course in the courts of civilized communities, but not of form merely. No court can command from an enlightened public that respect necessary to an even administration of the law without maintaining in its business proceedings that courtesy, dignity and purity which characterize the intercourse of gentlemen in private life. So, too, what a counsel does or says in the argument of a. cause must be pertinent to the matter on trial before the jury, and he takes the hazard of its not being so. Now, statements of facts not proved and comments thereon are outside of the cause. They stand legally irrelevant to the matter in question, and are therefore not pertinent. If not pertinent, they are not within the privilege of counsel.’ (Tucker v. Henniker, 41 N. H. 317.) In 1878 this question came for the first time before the Supreme Court of Wisconsin, and it was said by Chief Justice Ryan, in delivering the opinion of the court, that it was to the honor of the bar that this was the case. The counsel who had transcended the bounds of professional propriety, by commenting upon a supposed state of facts not in evidence, Avas eminent at the bar and of high character; and the observations of the court, while not implying personal censure, give for this reason greater emphasis to the rule which it laid down. The following view was delivered from the bench, in respect of the limits of professional propilety in arguing facts to juries: ‘ The profession of law is instituted for the administration of justice. The duties of the bench and bar differ in kind, not in purpose. The duty of both alike is to establish the truth and to apply the law to it. It is essential to the proper administration of justice, frail and uncertain at best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic strife is but-the method, and a mighty one, to ascertain the truth and the law governing the truth. It is the duty of counsel to make the most of the case which his client is able to give him ; but counsel is out of his duty and the right, and outside of the principal object of his profession, when he travels out of his client’s case and assumes to supply its deficiencies. Therefore it is that the nice sense of the profession regards with such distrust and aversion the testimony of a lawyer in favor of his client. It is the duty and right of counsel to indulge in all fair argument .in favor of the right of his client; but he is outside of his duty ancl liis right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. But an advocate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client’s prejudices against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to the prejudice, just or unjust, against his adversary, and dehors the very case he is to try. The very fullest freedom of speech, witliin the duty of his profession, should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. It may sometimes be a very difficult and delicate duty to confine counsel to a legitimate course of argument. But, like other difficult and delicate duties, it must be performed by those upon whom the law imposes it. It is the duty of the circuit courts, in jury trials, to interfere in all proper cases, of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon pertinent facts not before the jury, or appealing to prejudices- foreign to the case in evidence, exception may be taken by the other side, which may be good ground for a new trial, or for a reversal in this court.’ ” See also the remarks of Lumpkin, J., in Berry v. State, 10 Ga. 511, 522; Forsyth v. Cothran, 61 Ga. 278. See also Mitchum v. The State, 11 Ga. 615, where this point, is fully discussed by Judge Nisbet.

7. The seventh ground of the motion has already been considered. Nor do we think there was any error in the eighth ground of the motion. The meaning of the charge complained of in this ground is, we think, that if the plaintiff, Mrs. Randall, did not exercise ordinary care and caution, she could not recover if the company was free from negligence; but if she was negligent, and the company was also negligent, she might recover.

8. The ninth ground of the motion complains that the judge charged that in a case of this kind the damages must be assessed according to the enlightened consciences of impartial jurors. This .charge is correct where the plaintiff seeks only to recover for injuries to the person and for pain and suffering. If the plaintiff seeks to recover special damages, such as expenses of nursing, physician’s bill, medicine, etc., it is error to apply this rule to that character of damages. "While the declaration in 'this case alleges special damages, it seems from the recoi’d that special damages were not insisted upon, but that the plaintiffs sought only to recover for injuries to the person and for pain and suffering. In this view of it, there was no error in giving the charge.

9. The tenth ground complains that the court charged that any pain and suffering or sorrow resulting from the miscarriage, the law says is an element of damage. We would suggest that the word “sorrow” be .omitted from the charge of the court on the next trial. It is most too remote to be considered an element of damage, unless it is that sorrow which accompanies the actual injury and is suffered at the time of the miscarriage. The loss of a child by a miscarriage would affect women so differently that it would be hard for men, sitting as jurors, to estimate it as an element of damage; and we therefore think it would be better to omit, in the future, any instruction to the jury upon the question of sorrow as an element of damage. Pain and suffering give a wide latitude to juries, and there are very few complaints made of the smallness of the amounts found by juries upon these two elements of damage. TJpon the question of sorrow being an element of damage, see 5 A .So Eng. Eucl. of Law, 42; Bovee v. Danville, 53 Vt. 190.

10. We see no error as complained of in the other grounds of the motion not herein discussed.

Judgment reversed.