St. L. S.W. Ry. Co. v. Boyd , 40 Tex. Civ. App. 93 ( 1905 )

The writer does not concur with his associates in holding that reversible error is shown by the twelfth assignment. The bill of exceptions upon which that assignment is based, omitting immaterial parts, reads as follows:

"That upon the trial of this cause, plaintiff's attorney C. B. Randell in discussing the evidence which showed that defendant had nineteen or twenty switch tracks running across Oak Street in Texarkana, Texas, and that it did not maintain any watchman there to warn people of danger in traveling on said street and over the portion of same where its tracks crossed and in arguing with the jury as to what their verdict should be and in appealing to the jury to give plaintiff a large amount, said: 'The public is interested in a matter of this kind. If a man is injured under these circumstances and gets only partial damages, then the public suffers and the law is defeated to the extent that he fails to get full compensation. It looks like the railroad company is willing to let this state of affairs go on and fight the cases where they inflict injuries, rather than go to the expense of having a watchman on this street to protect the public. Therefore, I say, the public is interested in a case like this.' Whereupon defendant's attorney called the court's attention to said language and objected to it, on the ground that it was improper, prejudicial and out of the record, and should not be permitted, and excepted to its use and its being permitted to be made, and tenders this its bill of exceptions No. 4, and asks that it be approved and filed."

It will be observed that the bill does not state what ruling the trial judge made, or that he failed to make any ruling in reference to the matter complained of. In this respect, it seems to me that the bill is incomplete, and fails to present for review any action of the court below. In order to obtain a new trial on account of improper conduct on the part of opposing counsel, the law requires the complaining party to show that he exercised diligence by invoking corrective action of the trial judge while the trial was in progress. The rule on the subject is stated in these words by a standard authority:

"In order that a party may avail himself in an Appellate Court of an objection for misconduct of opposing counsel in the argument of a case, he must not only interpose a seasonable objection, as has just been stated, but he must then press the court to a distinct ruling, and, if dissatisfied therewith, enter an exception; otherwise, there is nothing presented for review." (2 Ency. Plead. Prac., p. 755.) The text stated by this high authority is well supported by numerous authorities cited in the footnote. The bill of exceptions in this case does not distinctly show what, if any, ruling was made by the court, nor does it show that the court failed to rule on the objection.

In Anderson v. Anderson, 23 Tex. 642, the bill of exception did not specifically state that the evidence was tendered and that the court excluded it, but stated that the plaintiff "excepted to the ruling of the court in refusing to hear" certain evidence; and, although the Supreme Court conceded that it might be inferred from the language quoted that the evidence was offered by the plaintiff and excluded by the court, the bill of exception was held to be insufficient, Chief Justice Wheeler, speaking for the court, saying: "It is not stated that any such evidence was offered; and we have repeatedly decided that the bill of exception must show the particular ruling complained of. It ought distinctly to appear that the evidence was proposed at the proper time and that the court refused to admit it."

From the statement in the bill of exception in the case at bar, that the defendant excepted to the language complained of "and its being permitted to be made," it may perhaps be inferred that the court overruled the objections and held that the language referred to did not exceed the scope of legitimate discussion; but such ruling is not otherwise made to appear. However, the language of the bill of exception, "being permitted to be made," is rather ambiguous, and the inference referred to is not necessarily the only one that might be deduced therefrom. The language quoted from the bill may have had reference to the fact that the court did not, of its own motion, interfere and prevent the use of the language complained of. Therefore, it does not distinctly appear what, if any, ruling the court made in reference to the objection made to the argument; and the rule announced and applied in Anderson v. Anderson, supra, is believed to be applicable.

For the reasons stated I conclude, that the question held in the majority opinion to show reversible error, is not properly presented for decision; and I express no opinion thereon. I concur in overruling all the other assignments of error, and believe the twelfth should also be overruled and the judgment affirmed.

Reversed and remanded.

Writ of error refused.