Agee v. Lofton, 16468
| Decision Date | 30 March 1961 |
| Docket Number | 16469.,No. 16468,16468 |
| Parties | Hattie J. AGEE, Appellant, v. Ray LOFTON, Appellee. Mary Lou AGEE, Appellant, v. Ray LOFTON, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert M. Dippel, Council Bluffs, Iowa, and Charles E. Kirchner, Omaha, Neb., for appellants.
Philip J. Willson, Council Bluffs, Iowa, and James G. McDowell, Jr., Des Moines, Iowa, Raymond A. Smith and John LeRoy Peterson, Council Bluffs, Iowa, on the brief, for appellee.
Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.
These are appeals from separate judgments based upon separate verdicts for the defendant (appellee) in separate actions brought by Hattie J. Agee and Mary Lou Agee to recover for personal injuries and property loss sustained by each of them, allegedly as a result of the negligence of an employee of the defendant, when the automobile in which both plaintiffs were riding collided with a truck owned by the defendant and being operated by his employee. The collision occurred September 5, 1957, on Highway 75 near Mondamin, Iowa, while both vehicles, traveling in opposite directions, were crossing a bridge. The defendant denied liability, and set up a counterclaim against Mary Lou Agee for damage to his truck and loss of its use.
The actions, federal jurisdiction of which was based on diversity of citizenship and amount in controversy, were consolidated for trial, and tried to a jury in November, 1959. The verdicts for the defendant resulted in a judgment dismissing the action of each of the plaintiffs and awarding the defendant $542.96 against Mary Lou Agee upon his counterclaim.
On behalf of the plaintiffs it is contended that they did not have a fair trial because of uncalled for, unjudicial and prejudicial remarks volunteered by the trial judge in the presence of the jury during the course of the trial. Counsel for the defendant argues that the plaintiffs are not entitled to a reversal of the judgments on that account, since no objections or exceptions were taken to the trial judge's remarks of which they now complain, and that the remarks were not intended or calculated to harm the plaintiffs or to prevent the jury's reaching an impartial verdict.
Exceptions should, no doubt, have been taken at the trial to the objectionable remarks of the judge; but counsel, in a trial such as this, are, understandably, loath to challenge the propriety of a trial judge's utterances, for fear of antagonizing him and...
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