Bitterman v. Hearn
| Decision Date | 19 September 1895 |
| Citation | 32 S.W. 341 |
| Parties | BITTERMAN v. HEARN. |
| Court | Texas Court of Appeals |
Appeal from Nueces county court; T. L. Henderson, Special Judge.
Action by O. H. Hearn against L. A. Bitterman for conversion. From a judgment for plaintiff, defendant appeals. Reversed.
Delmas Givens and Turner & McCampbell, for appellant. G. R. Scott & Bro., for appellee.
The appellee brought suit against appellant to recover damages, both compensatory and punitory, for the alleged illegal and malicious conversion of appellee's property, to wit, 1 wagon and harness, and 19 hundred pounds of seed cotton. The petition also prayed damages for injury to plaintiff's feelings, and for lost time of himself and his minor son. Verdict was rendered for the plaintiff, awarding him $45 for the wagon, $38 for the cotton, $4 for the harness, $12 for loss of time, $25 for mental suffering, and $250 exemplary or punitory damages, with interest up to rendition of verdict, at 6 per cent. The defendant moved for a new trial, but, before the motion was heard, plaintiff was permitted by the court to enter a remittitur for each and all of the sums awarded him by the verdict, save that allowed for the wagon, that for the cotton, that for the harness, and that for exemplary damages. The motion was then heard and overruled by the court, and the defendant excepted, and gave notice of appeal to this court.
Among the assignments of error is the following: "The court erred, as urged by defendant in his motion for a new trial, and as shown by his ninth bill of exceptions, in permitting one of plaintiff's counsel to make use of the following language in his closing argument to the jury, without properly instructing them thereon, to wit: `Because L. A. Bitterman [meaning the defendant] has his thousands, because the rich oppress the poor, shall this old man [pointing to plaintiff] be deprived of his rights?' because said language tended to rouse the passions of the jury, and unduly influence them in rendering an excessive and unlawful verdict; the same is not based upon any evidence in the record; was not in reply to any argument of counsel for the defendant, and was in violation of the rules laid down by the supreme court of this state for the government of the lower courts, and was not repressed, nor was the jury properly instructed by the court thereon, in any manner whatever." The language complained of in this assignment is certainly such as is well calculated to influence the passions of the jury, and to bias their judgment. The use of such language by counsel is undoubtedly in violation of the rules of court, and, in its tendency, is destructive of judicial decorum, and it was the plain duty of the judge to have restrained counsel, and to have told the jury...
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