Conn v. Seaboard Air Line Ry. Co.

• Decision Date: 27 June 1931
• Docket Number: 107.
• Parties: 201 N.C. 157, 77 A.L.R. 641 v. SEABOARD AIR LINE RY. CO. et al. CONN
• Court: North Carolina Supreme Court

159 S.E. 331

201 N.C. 157, 77 A.L.R. 641

CONN v. SEABOARD AIR LINE RY. CO. et al.

No. 107.

Supreme Court of North Carolina

June 27, 1931

Appeal from Superior Court, Vance County; Sinclair, Judge.

Action by Lonnie G. Conn against the Seaboard Air Line Railway Company and another. Judgment for plaintiff, and defendants appeal.

New trial.

This was an action instituted by the plaintiff against the defendant to recover damages for personal injuries sustained on April 3, 1930, at a crossing in the town of Henderson. The defendant denied the allegations of negligence, pleaded contributory negligence and other defenses not pertinent to a decision of this case.

Issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of plaintiff. The verdict awarded $7,000 damages for personal injuries and $250 for property damage.

From judgment upon the verdict, the defendant appealed.

Murray Allen, of Raleigh, and Pittman, Bridgers & Hicks, of Henderson, for appellant.

M. C Pearce and D. P. McDuffee, both of Henderson, and C. A Douglass and Thos. W. Ruffin, both of Raleigh, for appellees.

BROGDEN J.

The record shows the following: During the argument of one of counsel for plaintiff to the jury, he made the following statement:

"The law in North Carolina says that all Mr. Conn had to do when he approached that track was to stop, if the circumstances were such that an ordinarily prudent man would stop, look and listen, and then go ahead as he did in this case." "The North Carolina Supreme Court in the case of Kimbrough v. Hines, 180 N.C. 274, 104 S.E. 684, and decided in the year 1920, turned the defendant's theory down flat. I want to read here what Judge Clark said about the law. Judge Clark was a great Chief Justice of the Supreme Court and one who upheld the liberties of the people."

Objection by defendant to plaintiff's attorney reading from the opinion of Judge Clark. The court then charged the jury: "The jury will take the law from the court and not from counsel."

Counsel for defendant: "We note an exception to the reading of the dissenting opinion of Judge Clark."

Objection by defendant; overruled; defendant excepts.

"Talking about going out upon the track, he said: "'Gessler placed his hat upon a pole and compelled the public to pay obeisance to it. But neither of these are more repugnant to our sense of propriety and right than to require the people traveling their own roads to come to a full stop at the sight of two parallel bars of iron laid across the public highway, simply because the railroads, while saving themselves the expense of avoiding grade crossings, are unwilling to take the trouble or responsibility to give proper signals or to establish gates and custodians whenever needed." D' This is Judge Clark's language on it. I don't care how much the attorney for the railroad objects to it. It is my opinion that the Supreme Court of North Carolina in the case of Moseley v. Railroad, 197 N.C. 628, 150 S.E. 184, has backed Judge Clark up in his statement that it is not your duty to stretch your necks and bow to two iron rails. That is what you say the law is," etc.

The foregoing excerpt from the record presents for decision this question of law:

In arguing a case to the jury, is it permissible for an attorney to read to the jury a dissenting opinion of one of the justices of the Supreme Court of North Carolina?

Doubtless, it should be observed at the outset that a general dissertation or essay upon dissenting opinions is not pertinent to a solution of the question of law involved in this appeal. Suffice it to say that such opinions constitute valuable and helpful interpretation of the law as expounded, or present in clear relief the divergent paths of legalistic thought upon a given subject. Moreover, at times, they may serve to demonstrate that courts and judges do not always fall into the goosestep of outworn precedent.

Prior to December 27, 1844, an attorney was not permitted to argue law to a jury. In State v. Miller, 75 N.C. 73, Justice Reade said: "Some twenty-five years ago a Circuit Judge restrained a lawyer from arguing the law to the jury, suggesting that the argument of the law ought to be addressed to the Court, as the jury had to take the law from the Court. Umbrage was taken at that, and the Legislature passed an act allowing counsel to argue both the law and the facts to the jury." The act referred to is chapter 13, Public Laws of 1844, and is now embodied in C. S. § 203, which provides that "in jury trials the whole case as well of law as of fact may be argued to the jury." This declaration is broad and comprehensive and easily lent itself to a construction by the profession that the field of a jury argument was unlimited and boundless. Hence, in the course of time, it became necessary for courts to fence in the field by imposing certain restrictions upon counsel in presenting causes to the jury. These restrictions are reflected in certain legal inhibitions imposed by the courts. These inhibitions may be grouped and classified as follows:

1. Attorneys are not permitted, except in certain specific instances, to read medical books or writings of a scientific nature to the jury. Melvin v. Easley, 46 N.C. 386, 62 Am. Dec. 171; Huffman v. Click, 77 N.C. 55; State v. Rogers, 112 N.C. 874, 17 S.E. 297; Butler v. R. R., 130 N.C. 16, 40 S.E. 770; Lynch v. Mfg. Co., 167 N.C. 98, 83 S.E. 6; Tilghman v. R. R., 171 N.C. 652, 89 S.E. 71, 75. Nor can counsel read a paper writing not in evidence for the purpose of impeachment. State v. Bryan, 89 N.C. 531. The theory which excludes the reading of such publications is based upon the idea that declarations in a book or opinions of experts contained therein are not under oath, and hence cannot be classified as evidence. The exception to the general rule is pointed out in the Tilghman Case, supra, in these words: "When an expert has given an opinion and cited a treatise as his authority, the book cited may be offered in evidence by the adverse party as impeaching testimony. But, unless the book is referred to on cross-examination, it cannot be used for this purpose. It would be a mere evasion of the general rule under discussion if counsel were allowed on cross-examination to read to the witness portions of such works, and to ask if he concurred in or differed from the opinion there expressed; hence this is not allowed."

2. The second class of restrictions may be denominated as unfair comment and is discussed in many decisions, notably: Jenkins v. Ore Co., 65 N.C. 563; State v. Williams, 65 N.C. 505; Coble v. Coble, 79 N.C. 589, 28 Am. Rep. 338; State v. Davenport, 156 N.C. 596, 72 S.E. 7; State v. Tucker, 190 N.C. 708, 130 S.E. 720; Lamborn v. Hollingsworth, 195 N.C. 350, 142 S.E. 19; State v. Green, 197 N.C. 624, 150 S.E. 18; State v. Beal, 199 N.C. 278, 154 S.E. 604. These illustrations of unfair comment, beginning with the familiar "poor widow and rich corporation" argument, running through the "Pennsylvania Yankee" appeal, including the famous upas tree declaration and ending with the religious and social theories referred to in the Beal Case, all stand as a lasting monument to vituperative ingenuity. The climax of unfair comment in the literature of the law of this state was reached in the argument of counsel and the charge of the court in State v. Brown, 67 N.C. 435.

3. The third class of inhibitions denies to counsel the right to read the decisions of the Supreme Court of North Carolina where such reading would reasonably tend to prejudice either party upon the facts. State v. Corpening, 157 N.C. 621, 73 S.E. 214, 215, 38 L. R. A. (N. S.) 1130; Forbes v. Harrison, 181 N.C. 461, 107 S.E. 447, 448; Elliott v. Power Co., 190 N.C. 62, 128 S.E. 730. Thus, in the Corpening Case, the court said: "As we understand the record, the counsel for the prosecution read the facts in Malonee's Case [154 N.C. 200, 69 S.E. 786], relied upon as supporting evidence to the prosecutrix, and, over defendant's objection, was allowed by the court to say in effect that a jury of Jackson county had convicted Malonee, and the supporting evidence was much stronger "than in Malonee's Case,' etc." A new trial was awarded because the trial judge permitted such argument to be made. In the Forbes Case, counsel attempted to read a portion of the opinion in Bell v. Harrison, 179 N.C. 190, 102 S.E. 200, and upon objection by counsel for defendant the court declined to permit such reading, and this ruling was upheld. The court observed that "two cases grew out of the same administration, and there was grave danger of prejudicing the defendants upon the facts, if counsel was allowed to read the part of the opinion and case proposed to be read by him."

4. The fourth class of restrictions denies to counsel the right to comment upon extraneous matters upon which there is no evidence. McLamb, Adm'r, v. R. R. Co., 122 N.C. 862, 29 S.E. 894; Hopkins v. Hopkins, 132 N.C. 25, 43 S.E. 506; State v. Love, 187 N.C. 32, 121 S.E. 20.

5. The fifth class of restrictions excludes personal experience of counsel as part of the argument. Perry v. R. R., 128 N.C. 471, 39 S.E. 27.

The courts of other jurisdictions have considered the question as to what may be read to a jury by counsel in the course of argument.

6. The Court of Appeals of New York granted a new trial in the case of Williams v. Brooklyn Elevated R. R. Co., 126 N.Y 96, 26 N.E. 1048, 1049, because counsel, in the course of the argument, was permitted, over objection, to read to the jury an article appearing in the New York Tribune, entitled ""Only a Boy Peddler." The article purported to be an account of the death of a little boy who was selling collar buttons and combs to...