Goodyear Yellow Pine Co. v. Lumpkin

• Citation: 130 So. 745,158 Miss. 578
• Decision Date: 17 November 1930
• Docket Number: 28979
• Court: United States State Supreme Court of Mississippi
• Parties: GOODYEAR YELLOW PINE CO. v. LUMPKIN

130 So. 745

158 Miss. 578

GOODYEAR YELLOW PINE CO. v. LUMPKIN

No. 28979

Supreme Court of Mississippi

November 17, 1930

Division B

1. APPEAL AND ERROR.

Action of trial judges is presumed to be correct on appeal.

2. APPEAL AND ERROR.

Where there were two assignments of error, both of law, but no citation of authority in brief, judgment would be affirmed.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county, Hon. J. Q LANGSTON, Judge.

Action between the Goodyear Yellow Pine Company and B. E. Lumpkin. From the judgment, the former appeals. Affirmed.

Affirmed.

Luther L. Tyler, and J. C. Shivers, both of Picayune, for appellant.

Where there is no proof in the record that any responsible servant or officer of the company had any actual knowledge of the existence of the defect and it arose such a short time before the accident that the master could not be said to have had reasonable notice of it, there is no negligence on the part of the master.

The court erred in permitting counsel to continue and to complete his critical argument directed toward the appellant's offer to have the doctor testify without any action on the part of the court at the time. The harm from such improper and pernicious argument had already been done. The injunction and remonstrance of the court at the conclusion of the argument came entirely too late to cure the error and to remove the prejudice that had been created in the minds of the jury.

J. E. Stockstill, of Picayune, and Hall & Hall, of Columbia, for appellee.

The action of the lower court in giving and refusing instructions was proper.

Kneals v. Dukate, 93 Miss. 201, 46 So. 715; A. & V. Ry. v. Groome, 97 Miss. 201, 52 So. 703; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Benton v. Finkbine Lbr. Co., 118 Miss. 558, 79 So. 346; Y. & M. V. R. R. v. Smith, 150 Miss. 882, 117 So. 339; Planter's Oil Mill v. Wiley, 154 Miss. 113, 122 So. 365.

Where the court instructs the jury that they must disregard any improper remarks or improper arguments of counsel, the error if any occurred, ordinarily is cured, and a new trial will not be granted.

2 R. C. L., p. 436, sec. 35.

Until the contrary appears, it must be presumed that a jury honestly performs its duty, and ignores such incompetent evidence or improper remarks inadvertently made by counsel, as they are instructed by the court to disregard.

Cheatham v. State, 67 Miss. 335, 7 So. 204; Graham et al. v. United States, 58 L.Ed. 319; Life & Casualty Ins. Co. v. Cain, 116 So. 154.

OPINION

Griffith, J.

There are two assignments of error both of law, yet there is not a single citation of authority in appellant's brief; and although there is what might be regarded as a general indication of principles of law which appellant would...