Danner v. Mid-State Paving Co., MID-STATE

• Decision Date: 12 April 1965
• Docket Number: MID-STATE,No. 43463,43463
• Citation: 252 Miss. 776,173 So.2d 608
• Parties: Mrs. Tiny Pearl DANNER et al. v.PAVING COMPANY and Edward E. Trussell.
• Court: Mississippi Supreme Court

Page 608

173 So.2d 608

252 Miss. 776

Mrs. Tiny Pearl DANNER et al. v. MID-STATE PAVING COMPANY and Edward E. Trussell.

No. 43463.

Supreme Court of Mississippi.

April 12, 1965.

J. M. Morse, III, University, Williamson, Pigford & Hendricks, Meridian, for appellant.

Ethridge, Minniece, Bourdeaux & Jones, Meridian, for appellee.

BRADY, Justice:

The appellants here are the next of kin and beneficiaries under the Mississippi wrongful death statute, and consist of the wife and daughters of George G. Danner, who lost his life on December 11, 1962 at approximately 2:30 P.M. when a 1950 model Plymouth sedan, being operated in a westerly direction on 8th Street in the city of Meridian, collided with a 1957 model Chevrolet truck owned by the appellee corporation and being operated by its employee, the appellee Edward E. Trussell, a Negro, in an easterly direction on said 8th Street in or near a school zone where the regulated speed was not to be in excess of fifteen miles per hour.

The declaration was filed on February 1, 1963 in the Circuit Court of Lauderdale County. The trial was held on June 14, 1963, resulting in a jury verdict for the appellants in the sum of $25,000. Appellees' motion for a new trial was sustained by the trial court and an order entered on June 19, 1963 because of improper statements made by the appellants' attorney to the jury in his summation. The record discloses, however, other errors which were committed in this trial which could have required the lower court to have granted a new trial upon proper motion therefor.

A second trial was held at the January, 1964 Term of Court, which resulted in a mistrial because the jury was unable to agree upon a verdict.

At the April, 1964 Term of Circuit Court a third trial was held, which resulted in a jury verdict for the appellees. Appellants' motion for a new trial was made and was overruled on May 2, 1964. From the judgment, the overruling of the motion for a new trial, and the errors assigned in the third trial, this appeal is prosecuted.

The appellants assigned as errors on their appeal, the following:

I. The Court below erred in sustaining a Motion for a New Trial and setting aside the jury verdict and judgment in the first trial of this cause and thereby erred in trying the case the second and third time.

II. The Court below erred in holding that argument of Counsel constituted fatal error and was such that it could not be erased other than by the granting of a new trial.

III. The Court below erred in granting the Instructions requested by the defendants in the third trial.

Insofar as the first two errors are concerned, this Court feels that they are controlled by the rules of law as set forth in the following cases: Long v. Magnolia Hotel Co., 236 Miss. 655, 111 So.2d 645, 114 So.2d 667 (1959); Harper v. Mississippi State Highway Comm., 216 Miss. 321, 62 So.2d 375 (1953); Smith v. Walsh, 63 Miss. 584 (1886); S. & F. Dorr & Co. v. Watson and Woodhouse, 28 Miss. 383 (1854).

It was pointed out in the Long case in 236 Miss. at 666, 111 So.2d at 649-650, where this Court quoted from the Smith v. Walsh case, as follows:

'We are unwilling to disturb the judgment of the lower court in granting a new trial upon the first verdict. The rule that the action of the trial court upon a motion for a new trial is to be favorably considered upon appeal, and supported unless manifest error appears, and is particularly applicable where the new trial has been granted, since in such cases the rights of the parties are not finally settled, as they are where a new trial is refused, but another trial is had. Dorr v. Watson, 28 Miss. 383.'

Furthermore, in the Long case in 236 Miss. at 667, 111 So.2d at 650, we quoted from the case of Harper v. State Highway Commission, as follows:

'Section 1536, Code of 1942, recognizes the right of a trial court to grant as many as two new trials if the facts and circumstances are such as to warrant the court in doing so. And the action of a trial court in setting aside a verdict and granting a new trial will not be disturbed unless there is a manifest abuse of his discretion in so doing.'

Therefore the issue, insofar as the first two errors are concerned, turns upon whether or not the argument of counsel representing the appellants constituted fatal error and was such that it could not be erased other than by the granting of a new trial. We can say that the argument made by counsel for the appellants, urging the jury to adopt the Golden Rule in reaching their verdict, did constitute fatal error, and the effort on the part of appellants' attorney to correct the error subsequent to the time the court overruled the appellees' motion for a mistrial failed to do so.

It is conceded by the appellants in their brief that the sole major issue presented for decision to this Court by the sustaining of the lower court of the appellees' motion for a new trial is whether or not the statements of appellants' counsel, taken as a whole, constitute such prejudicial and fatal error as to warrant the setting aside of the verdict of the jury and allowing the case to be retried. In sustaining the appellees' motion for a new trial, the circuit court stated:

'* * * the court finds that errors prejudicial to the rights of the defendants were committed by the closing argument made by one of counsel for the plaintiffs to the jury requesting the jury to apply the 'Golden Rule' and that the court should have sustained the objection of the defendants to such argument.

'The court, therefore, further finds that the jury verdict and the judgment entered thereon should not be allowed to stand, but that said verdict and judgment set aside and a new trial granted as to all issues.'

Turning to the so-called Golden Rule, which is found in the scriptures at Matthew 7:12, Luke 6:31, courts of this country have uniformly held that human beings are unreliable judges of their own affairs; that it is expecting too much of a man to weigh his own case fairly and impartially, since most humans want their own cases to be decided in their favor. It follows, therefore, to advise jurors to decide a case as they would want it decided if they or their loved ones were the litigants is to establish a false standard for the basis of judgments. The actual words complained of by the appellees, which appellants' counsel stated to the jury in his summation, were: 'I want you to treat Mrs. Danner and her children as you would want your wife and children treated if this would happen to you. Follow the Golden Rule. Do unto others as you would have them do unto you.'

The record discloses that objection was promptly made and the trial court was requested to admonish counsel not to so charge the jury and asked that the court instruct the jury to disregard the statement of appellants' counsel. The appellees therefore did all that could be done at that point in the trial to correct the error which had been made. Appellees objected to the argument of counsel representing appellants and requested the court to instruct the jury to disregard it. This the trial judge declined to do, and overruled the motion. Approval was thereby placed upon the statement which appellants' counsel had made with reference to the Golden Rule. Evidently realizing the error which had been committed, counsel representing the appellants then attempted to rectify the wrong by asking the jury to place them in the shoes of the corporation. This effort emphasized the fact that a corporation was one of the appellees but, in our opinion, did not rectify the error which had been committed.

Subsequent arguments or statements made in the summation by the attorney representing the appellants likewise failed to sufficiently instruct the jury that they were not only at liberty to do so but that they should completely disregard the Golden Rule statement which he had made. It is impossible to say whether the error committed by counsel representing the appellants, or the error committed by the court in condoning or justifying the error committed by appellants, had the most influence upon the jury. We agree with the contention of the appellees that the instructions granted to the appellants and the appellees did not correct or rectify the impact of the Golden Rule argument which had been made by counsel for the appellants and approved by the court. While the instructions to the jury are of the utmost importance, nevertheless it is also a fundamental truth, and is well recognized, that the juries pay far more attention to the summation of counsel at the conclusion of a case, and the arguments which are made to them, than they do to the instructions which are given them in writing for their consideration in their chambers. Any erroneous statement which is made to the jury in the summation of a case should be corrected in the summation of the case before the jury, not only by the person committing the error, but also by the court, and the courts are more and more tending to poll the jury when a motion for a mistrial is made because of such an error, to determine whether or not the jury not only can, but will, completely disregard the erroneous statement calculated to influence their motions and overthrow their judgment with reference to the application of the law as it applies to the facts.

In Copiah Dairies, Inc. v. Addkison, 247 Miss. 327, 338-339, 153 So.2d 689 (1963), we stated as follows:

'Appellant complains of argument made by appellee's attorney to the jury. He told the jury that in deciding the amount of damages, the jurors should put themselves in the shoes of the plaintiff and should do unto the plaintiff as they would want him to do unto them, and mentioned going according to the Golden Rule in this matter. Defendants objected and the court stated that technically the argument was not stating the correct test, but that the court felt the jurors were honorable and reasonable men and would take such argument in...