Big Ledge Copper Co. v. Dedrick

• Decision Date: 23 December 1919
• Docket Number: Civil 1754
• Citation: 21 Ariz. 129,185 P. 825
• Parties: BIG LEDGE COPPER COMPANY, a Corporation, Appellant, v. GEORGE C. DEDRICK, Appellee
• Court: Arizona Supreme Court

185 P. 825

21 Ariz. 129

BIG LEDGE COPPER COMPANY, a Corporation, Appellant, v. GEORGE C. DEDRICK, Appellee

Civil No. 1754

Supreme Court of Arizona

December 23, 1919

APPEAL from a judgment of the Superior Court of the County of Yavapai. J. J. Sweeney, Judge. Affirmed.

Messrs Anderson & Ellis, for Appellant.

Messrs O'Sullivan & Morgan, for the Appellee.

OPINION

CUNNINGHAM, C. J.

The only questions presented by this record and urged on this appeal are the questions arising out of alleged misconduct of the attorney for the plaintiff, alleged to have occurred during such attorney's argument at the close of the trial. Plaintiff's attorney, in his closing argument to the jury said:

"It is a matter of common knowledge in this state that every corporation can protect itself by carrying liability insurance, and if this corporation was negligent in failing to take out insurance it was its fault.

"It is a matter of common knowledge, where a man receives an injury, the corporation does not pay, as they are always protected by the liability insurance they carry.

"It is a matter of common knowledge that every mining company of any consequence in this state carries liability insurance."

The appellant insists: First, that the court erred in failing and refusing to admonish the jury and instruct the jury to disregard said statements and not to consider same in arriving at their verdict; second, because the verdict and judgment were excessive, and the result of bias and prejudice engendered by the remarks of counsel; and, third, the verdict and judgment was "based at least to some extent upon the said unsworn statements of counsel."

The appellee's counsel, charged with making the above statements, in an affidavit admits that he made statements in substance about as alleged, but excuses that matter on the ground that he was impelled to make the statements because the argument appellant's counsel had used goaded him, and in answer he became impatient, making the remarks in a moment of passion. The minute entry presenting the record of this incident is as follows:

"Comes now J. A. Ellis, counsel for defendant, and interposes an objection to certain remarks made to the jury by P. W O'Sullivan, of counsel for plaintiff, in his closing argument, and said remarks objected to, being in substance as follows: [Setting forth the middle paragraph above quoted; the first and third are added by affidavit]. Whereupon the court ordered the objectionable remarks entered in the record."

The minutes further show that the defendant moved for a new trial "on the grounds of error in the argument of counsel for plaintiff," and appealed from an order refusing a new trial. The record is silent as to any request from any source for the court to admonish the jury and instruct the jury to disregard the said statements and give them no consideration in arriving at their verdict.

The court, in the instructions, charged the jury to determine facts from a preponderance of the evidence, and kept the duty constantly before them. In finishing the voluntary charge of the court, the following language was used:

"It now becomes your duty to lay aside every vestigate of passion, bias, and prejudice, and fearlessly and impartially decide this case now submitted to you. Under your oaths, gentlemen, I charge you to carefully, conscientiously, and fearlessly consider this case solely upon the evidence presented and the instructions of the court, and to render your verdict without sympathy either for the plaintiff or the defendant." -- thus closing the instructions. It seems quite clear under the law that the trial judge was required to go no further than the record discloses he did go. His omission to admonish the jury to give no consideration to counsel's said remarks cannot be justly deemed error when, as seems to have been the case, the counsel objecting to the remark made no request for such admonition. If the request had been made and refused, the result would have presented a very different case.

"In most jurisdictions an objection or exception to improper arguments or remarks of counsel or other misconduct is not in itself sufficient ground for reversal on appeal, but the action of the trial court must have been invoked by a request to instruct the jury to disregard them, by motion to declare a mistrial or otherwise. When the court sustains an objection to remarks of counsel in argument, and no further ruling is asked on the subject, it cannot be urged on appeal that the remarks should have been ruled out or the jury instructed to disregard them." 3 Corpus Juris, 863, 864, and cases referred to in notes accompanying.

The case on this proposition are numerous. Strictly speaking, the record before us conclusively shows that the court in this instance sustained the defendant's objections to the improper remarks of the plaintiff's counsel and granted defendant's request by making the objectionable remarks a matter of record. No further or other action of the court was invoked at that...