Theriot v. Mercer

• Decision Date: 23 January 1959
• Docket Number: No. 17214.,17214.
• Parties: Paris THERIOT, Appellant, v. Mrs. Wanda MERCER, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

262 F.2d 754 (1959)

Paris THERIOT, Appellant, v. Mrs. Wanda MERCER, Appellee.

No. 17214.

United States Court of Appeals Fifth Circuit.

January 23, 1959.

Robert G. Hughes, New Orleans, La., for appellant.

H. Alva Brumfield, Baton Rouge, La., for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and WISDOM, Circuit Judges.

HUTCHESON, Chief Judge.

Appealing from a judgment on a verdict in a suit for damages for the death of plaintiff's husband, defendant is here confidently insisting that, for the reasons put forward by him in his brief,¹ the court erred in denying his motion for an instructed verdict made at the close of plaintiff's case and repeated at the close of the evidence.

In the alternative he urges upon us that, in the conduct of the case, errors of omission and commission occurred which, permitting the case to go out of bounds, require reversal. Upon the considerations and for the reasons hereafter stated, we find ourselves in substantial agreement with these views.

In Maryland Casualty Co. v. Reid, 5 Cir., 76 F.2d 30, this court, as preliminary to disposing of the question for decision there, whether the trial had been attended with reversible error, carefully examined and as carefully showed forth the intensely dramatic nature and atmosphere of a jury trial and how it affects the actors in it, the witnesses, the lawyers, the litigants, the triers themselves — judge and jury. Pointing out that many verdicts in closely contested civil and criminal cases find their real spring in the atmosphere generated in and by the trial, where things felt but unseen, sometimes real, sometimes illusory, arising out of but more than the relevant and admissible evidence, in the end more influence the verdict than the relevant testimony itself does, the opinion, declaring that in a federal court, in a jury trial, it is the judge who is charged with full responsibility for its just outcome, then went on to say:

"* * * Because these things are so of jury trials, it is of the genius of our institutions that they be conducted under the firm and steady guidance of judges as administrators, who having minds trained and personalities adequate to the task, are held primarily responsible for their just outcome.2 Because these things are so, in a federal court at least, the conduct of jury trials is largely confided to the District Judge, who is expected to have and exercise trial skill of the highest order, and a wise and just discretion. His chief function, his primary object, is to keep the case within legal bounds by admonitions and rulings from its beginning to its end. He uses the rules of evidence as means, not ends, to elicit and confine the case to the best evidence available in order to bring the truth to light. Trained in the principles and problems of proof, knowing how to value the pertinent, to reject the impertinent, he uses other trial rules to accomplish the same end. Nor does his function as an overseer, superintendent, and administrator of the trial end with its ending.

"At common law and by statute, the federal District Judge is charged with the duty of granting a new trial in a jury case where, in his opinion, it went unjustly and injuriously out of bounds. This court, as to law cases, is a court of errors. We do not retry the case. We review the record made in it for reversible error, error by the judge, in conducting or failing to conduct the trial, which has, by permitting the case to get out of bounds, prejudiced the just result. * * *"

"Ordinarily, if his counsel fails to adequately object, or fails to except to adverse action on his objection, a litigant may not complain of what occurred as error, for he will be treated as having assented to it. On the other hand, a trial judge may never abdicate his function, or surrender to counsel the conduct of the trial. It is still his primary duty to oversee and conduct it. Because this is so, he may, and if he fails to, the appellate court may, though no objection is made and no exception taken, correct an error of abdication which has resulted unjustly, by voiding the trial. But this will be done only in extreme cases, where the judge\'s error in permitting the trial to get out of bounds, instead of exercising his function to guide and control it, is of such transcendent influence on the course of the trial as that, though not excepted to, justice requires its being noticed and corrected. * * *

2. `The judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who in our jurisprudence stands charged with full responsibility.\' Patton v. Texas & P. Ry. Co., 179 U.S. 658, 661, 21 S.Ct. 275, 276, 45 L.Ed. 361."

At pages 32-33. (Emphasis supplied.)

This case at once precisely illustrates and perfectly proves the truth and wisdom of what was there said. Originating in and bolstered by an atmosphere of rumor and intrigue, heard on inadmissible and inflammatory evidence and presented to the jury with the use of trial tactics equally inadmissible and inflammatory, which except in one glaring instance² went unrebuked and unrestrained, the case was tried in a melodramatic atmosphere and setting of suspicion and prejudice in and by which trifles light as air were made to seem confirmations strong as proofs of Holy Writ. Thus tried, it was submitted to the jury on a record so replete with instances of things done which ought not to have been done and of things left undone which ought to have been done as to require the holding here that defendant was deprived thereby of that fair trial to which, in a federal court at least, every person accused of fault is by law entitled.

The appellant, citing many instances in point, does indeed on page 11 of his brief courteously acknowledge "that the trial court attempted to protect defendant from speculative inadmissible and improper conclusions and opinions, but sufficient inadmissible evidence went into the record, and the damage was done with the jury". He, however, fails to point out many other instances of even greater moment where, due to the inaction of the trial judge, the trial went completely out of bounds as a trial to become a hue and cry. Without undertaking to point them all out, it is sufficient to say that one of the most grievous of them was the court's permitting a witness to be asked whether there had been a pay-off in the case and to answer that he had heard that there was. From then on, it is quite clear that the trial took on its cloak and dagger aspect of political intrigue and scandal, and the real issue, whether the defendant's car had struck the deceased and whether, if so, the defendant was negligent, was lost to view, indeed disappeared from the case.

We, therefore, agree with the appellee's statement on page 6 of her brief that, although the defendant denied making a pay-off or giving any political contribution to the sheriff in the sheriff's race that was going on at that time (and nobody gave testimony to the contrary), the jury nevertheless convicted Theriot of making such a pay-off. Indeed it was the admission of this wholly inadmissible and highly prejudicial hearsay testimony, the introduction of which should have caused a mistrial, which changed the case from a suit for damages into an inquisition into fraud and wrong doing in the sheriff's office, a matter which, in the state of the evidence, had nothing to do with the case and could have had no effect on it except the unlawful one of depriving the defendant of a fair trial on the charge of negligence made but not proven.

But this is not all. Recognizing throughout the trial the lack of probative evidence and undertaking to supply it by appeals to passion and prejudice, plaintiff's counsel began the trial with an inflammable opening statement in which, assuming as an established fact, a fact which he neither alleged nor proved, that defendant was a hit and run driver, he accused the defendant of being one, and on the basis of this accusation he in effect testified to the jury that it was his conclusion, and that of the officers who would testify for the plaintiff, that Theriot was a hit and run driver.³

In the same inflammatory way and without a single syllable of evidence on which to base it, counsel for appellee, in his argument, declaring "He had a complete disregard for this man's life", charged in effect that the defendant was a murderer. Equally inadmissible and inexcusable was his appeal to the passions of the jury, that it should not hesitate to find defendant guilty of negligence since defendant had a policy to pay the liability for him, while in the same breath he told the jury, though all the testimony was to the contrary, that defendant sold his business to his brother to escape liability and this was an admission of his guilt. Finally, he concluded with this impassioned appeal to prejudice against the defendant and sympathy for the plaintiff:

"So, it is in your hands. You now have the responsibility, and with all the sincerity of my command I implore, I beg you to render justice in this case. Not in the form of punishment but as you have the legal responsibility to do all that you can do within your human limitation, and that is to translate this life, this human being made in God\'s own image, crushed, killed, translate that life into dollars and cents. * * *"

To cap it all, there was the further and highly prejudicial error of charging the jury as follows:

"The testimony of all of the witnesses for the plaintiff has made out what we call in law a circumstantial case, and you will

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