Jovaag v. O'Donnell

• Decision Date: 23 June 1933
• Docket Number: No. 29322.,No. 29323.,29322.,29323.
• Parties: JOVAAG et al. v. O'DONNELL.
• Court: Minnesota Supreme Court

249 N.W. 676

189 Minn. 315

JOVAAG et al. v. O'DONNELL.

No. 29322.

No. 29323.

Supreme Court of Minnesota.

June 23, 1933.

Reargument Denied July 14, 1933.

Appeal from District Court, Blue Earth County; Harry A. Johnson, Judge.

Action by Burnett O. Jovaag and others against Emma C. O'Donnell. Judgment for plaintiffs, and defendant appeals.

Judgment reversed, and cause remanded, with directions.

H. L. & J. W. Schmitt and Charlotte Farrish, all of Mankato, for appellant.

John E. Regan and A. J. Berndt, both of Mankato, for respondents.

LORING, Justice.

Marguerite Jovaag and her husband, Burnett, brought these actions to recover for her personal injuries and the loss of her services arising out of an automobile collision. The wife recovered a verdict for $1,500 and the husband for $350. The defendant has appealed in each case from a judgment entered in favor of the plaintiff after a denial of the defendant's motion for judgment notwithstanding the verdict or a new trial. The appeals bring here the questions of misconduct of plaintiffs' counsel and whether or not the plaintiff Marguerite Jovaag, who was driving the Jovaag car at the time of the collision, was guilty of contributory negligence as a matter of law. The facts will be discussed in connection with the question of contributory negligence.

1. We take first the question of misconduct of counsel for the plaintiffs. His argument to the jury was reported, and at its close exceptions were taken thereto in accordance with subdivision f of rule 27 of the district court. 186 Minn. xxxiii. Until the adoption of this rule it had been necessary to interrupt counsel in order to save exceptions to improper argument. In re Estate of Mary Weber, 163 Minn. 389, 204 N. W. 52; State v. Peterson, 167 Minn. 216, 208 N. W. 761; State v. Cotter, 167 Minn. 263, 209 N. W. 4; Brown v. Burrow, 171 Minn. 219, 213 N. W. 890; Westwell v. Oleson, 174 Minn. 151, 218 N. W. 548; Christopherson v. Custom Laundry Co., 179 Minn. 325, 229 N. W. 136; Westwell v. Oleson, 180 Minn. 340, 230 N. W. 792; Seitz v. Claybourne, 181 Minn. 4, 231 N. W. 714; Moquin v. Mpls., St. P. & S. S. M. Ry. Co., 181 Minn. 56, 231 N. W. 829; Sigvertsen v. Maney Brothers Mill Co., 182 Minn. 387, 234 N. W. 688; State v. Geary, 184 Minn. 387, 239 N. W. 158; Olson v. Purity Baking Co., 185 Minn. 571, 242 N. W. 283.

Our Constitution, art. 6, § 14, confers upon the Legislature the power to direct the proceedings in the courts of the state. Pursuant to that power it has enacted section 182, Mason's Minn. St. 1927, requiring the district judges to assemble annually to revise the general rules of practice in that court and has authorized them to "revise and amend such rules as they deem expedient, conformably to law, and the same shall take effect from and after the publication thereof. Such rules, as the same shall be so revised and amended from time to time, shall govern all the district courts of the state."

It might, under the constitutional provision, have enacted a statutory rule like the one under consideration. Zimmerman v. Ry., 129 Minn. 4, 151 N. W. 412. It could have conferred the rule-making power on a higher court. Smith v. Valentine, 19 Minn. 452 (Gil. 393). It chose to confer the power on the judges of the district court.

In State ex rel. v. Otis, 71 Minn. 511, 74 N. W. 283, this court intimated that it would not be proper for the district judges by rule to require arguments of counsel to be made a part of the settled case. There the question under consideration was the reasonableness of a rule requiring a settled case to be in the form of question and answer and not to be in narrative form. It unreasonably affected the work of this court upon an appeal, and the rule was held bad on that account. The rule here under consideration does not in any way unreasonably affect or in any way hamper the work of this court upon appeal. It affects the practice in the district courts only.

It was always proper when interrupting counsel under the old rule to call in the reporter and have the exception and proceedings thereon made a part of the record. The practice frequently resulted in a dispute as to just what had been said by the alleged offender. But it was necessary to make a record if the matter was to be reviewed here. Anything that was said in State ex rel. v. Otis was not intended to prevent inclusion in the settled case of the record so made. We think that where advantage is taken of the new practice authorized by rule 27 only so much of the reported closing argument should be made a part of the settled case as may be necessary to a full understanding of the exception taken thereto. It is to be noted also that the rule permitting exceptions at the close of the reported argument is entirely optional and that the old practice is still open to those who prefer it.

2. While we are considering subdivision f of rule 27 we may say that we question the validity of the provision that the "services of the court reporter shall be at the expense of the party desiring it." The duties of court reporters are fixed by statute. Section 202, Mason's Minn. St. 1927. By section 202 they are required to record not only the testimony, but "shall also" record all proceedings had before the judge upon the trial of issues of fact, with or without a jury. The section concludes thus: "When directed so to do by the judge, he [the reporter] shall make a like record of any other matter or proceeding."

We have yet to learn that the argument of counsel is any less a part of the proceedings of a trial than the testimony or the charge to the jury. Sometimes it is less dignified, but nevertheless it is of the "proceedings" before the judge, unless, perchance, he is temporarily abdicating his duty by absenting himself from the courtroom. Because of the above-quoted provisions of section 202, we are disposed to deny that the district judges, or any one of them, by rule or otherwise, can compel a litigant to pay the reporter for his "services" in recording, as distinguished from transcribing, the argument of counsel. We consider that the plain statutory duty of the reporter to be rendered without special charge. It is not an additional service like the preparation of the transcript for which a special payment is provided by section 203.

3. In the case at bar the language of plaintiffs' counsel exceeded all bounds of propriety. It offended the dignity of the court and should have been restrained by the trial court without exception by opposing counsel. He accused his opponent of not being a gentleman, invited violence, and threatened to "make a mess of you." There was more coarse vituperation. Counsel also improperly intimated that the defendant would not be harmed by the verdict; the inference being that it would have to be paid by an insurance company. To some of these objectionable remarks exception was taken at the time, to others exception was taken at the close of the argument, and to some of the most objectionable no exception was taken.

The trial court should have been on the alert to protect its proceedings from such conduct. The record indicates that during a part of the arguments to the jury the court absented itself from the courtroom and thus abdicated control of the trial. This was improper. As said by this court in ...