Henry v. Sioux City & Pac. R. Co.

Decision Date09 December 1886
Citation70 Iowa 233,30 N.W. 630
CourtIowa Supreme Court
PartiesHENRY, BY ANOTHER, HIS NEXT FRIEND, v. SIOUX CITY & PAC. R. CO.

OPINION TEXT STARTS HERE

Appeal from district court, Cherokee county.

Action to recover for a personal injury. There was a trial to a jury, and verdict was rendered in favor of the plaintiff for $10,000. The court below, believing that the verdict was excessive, gave the plaintiff his option to accept a judgment of $6,000 or take a new trial. The plaintiff having elected to take a judgment of $6,000, such judgment was rendered, and the defendant appeals.Joy, Wright & Hudson, for appellant.

E. C. Herrick and E. F. Gray, for appellee.

ADAMS, C. J.

The defendant moved for a new trial on the ground of the misconduct of one of the plaintiff's attorneys. The misconduct, as set out in the motion for a new trial, is alleged to consist “in appealing to the prejudice, and inflaming the passions, of the jury, by reference to matters not in record, and by statements not warranted by the testimony in the case, in this: that in the opening argument counsel repeatedly urged upon the jury that the defendant was a rich, powerful, and wealthy railroad corporation; and, further, in this: that said counsel urged to the jury that defendant, by the exercise of superior power, and by the use of corrupt and unlawful means, had procured the plaintiff to be indicted by the grand jury of Harrison county of selling whisky, for the purpose of breaking down his evidence in this case,--for all of which statements there was no warrant in the testimony.” In support of the motion the affidavits of A. A. Hudson, counsel for the defendant, and W. E. Code, short-hand reporter, were filed, and the plaintiff's counsel, E. C. Herrick and E. F. Gray, filed their own affidavits in resistance. The court overruled the motion, and the defendant assigns the overruling as error.

The facts appear to be that the plaintiff, in the course of the trial, was called to the stand as a witness in his own behalf, and his testimony became very important in maintaining the issues upon his part. Upon cross-examination the defendant sought to impair his credibility, and for that purpose asked him, in substance, if he had not been indicted in Harrison county for selling whisky; and he answered that he understood that he had been, but denied that he had sold any liquor in fact. Afterwards the plaintiff showed, on the cross-examination of one Middleton, called as a witness for the defendant, that he, while in the employment of the defendant, was sent by the general superintendent to Missouri, where the plaintiff was at that time, to see what was his physical condition, and what he was doing; that Middleton found the plaintiff there, and had some conversation with him, and in one of their interviews he asked the plaintiff to take a drink, but he declined. The conduct of Middleton in going to Missouri, and while there in inviting the plaintiff to take a drink, was seized upon by one of the plaintiff's counsel in argument to the jury as a ground for claiming that Middleton's real motive was to get the plaintiff under the influence of liquor, in order to obtain from him while he should be in such condition some admission which could be used against him on the trial of this case. He also claimed, in substance, that there was ground for inferring that Middleton had had something to do with procuring the indictment against the plaintiff, for the purpose of injuring him in the trial of the case. He also went a little further, and made an insinuation against the defendant in this respect, if we understand the purport of what it is shown that he said.

It is shown by the affidavit of the short-hand reporter, and his statement appears to be undenied, that during the argument of the plaintiff's counsel the counsel for the defendant objected to the counsel for the plaintiff urging, in his argument to the jury, that the facts would warrant them in concluding that the defendant corporation procured an indictment against the plaintiff, because there was no evidence tending to so show; that thereupon the plaintiff's counsel said to the jury: We do not charge that the corporation in the case procured the indictment. We do not say that they had anything to do with the indictment. But what I say to you is that the facts that have been disclosed in evidence in this case, with regard to the action of this man Middleton, are such as are not inconsistent with the inference that they might resort to a proceeding of that kind for the purpose of injuring the case of the plaintiff before the jury.”

The act referred to, of procuring an indictment against the plaintiff for the purpose of proving the same, by cross-examination of him, in order to impair his credibility,...

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7 cases
  • Redd v. State
    • United States
    • Arkansas Supreme Court
    • July 9, 1898
    ...to subject the jury to the stress of outside influence and sentiment are improper and prejudicial. 44 Wis. 282; 49 Ind. 34; 14 S.W. 566; 30 N.W. 630; 79 N. 589; 4 N.E. 911; 52 N.W. 873; 38 Kas. 53; 36 O. St. 201; 82 Mo. 67; 66 Mo. 588; 100 Ind. 268; 48 Ark. 131; 61 Ark. 130. Nor should coun......
  • Petajaniemi v. Washington Water Power Co.
    • United States
    • Idaho Supreme Court
    • May 11, 1912
    ... ... Sass, 19 Kan. 556; Scripps v. Riley, 38 Mich ... 10; Chicago City Ry. Co. v. Gregory, 221 Ill. 591, 6 ... Ann. Cas. 220, 77 N.E. 1112; ... Banks, 15 ... Neb. 20, 48 Am. Rep. 334, 16 N.W. 833; Henry v. Railroad ... Co., 70 Iowa 233, 30 N.W. 630; Campbell v ... Maher, ... ...
  • McFalls v. State
    • United States
    • Arkansas Supreme Court
    • December 3, 1898
    ...the prosecuting attorney to make statements in his open argument which the evidence did not sustain. 78 Ga. 592; 68 Ala. 476; 48 Ark. 131; 30 N.W. 630; 4 N.E. 911; N.E. 991; 41 N.E. 545; 75 Ind. 215, 221; 38 Kan. 53; 11 N.W. 174; 36 O. St. 201; 44 Wis. 282; 62 Ala. 155; 71 Mich. 452; 35 Mic......
  • State v. Butler
    • United States
    • Oregon Supreme Court
    • December 23, 1919
    ... ... R. Co ... v. Brogonier, 13 Ill.App. 467; Chase v. City of Chicago, ... [96 Or. 283] 20 Id ... 274; Ferguson v. State, ... Hall v. Wolff, 61 Id ... 559 [[[16 N.W. 710]; Henry v ... Sioux City, etc., Ry. Co., 70 Id ... 233 [30 N.W. 630]; ... ...
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