Kansas City Southern Ry. Co. v. Murphy

• Decision Date: 18 February 1905
• Citation: 85 S.W. 428
• Parties: KANSAS CITY SOUTHERN RY. CO. v. MURPHY.
• Court: Arkansas Supreme Court

85 S.W. 428

KANSAS CITY SOUTHERN RY. CO. v. MURPHY.

Supreme Court of Arkansas.

February 18, 1905.

Appeal from Circuit Court, Sevier County; Will P. Feazel, Judge.

Action by H. A. Murphy against the Kansas City Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

S. W. Moore and Read & McDonough, for appellant.

HILL, C. J.

This is a suit for damages for the alleged negligent killing of a mule by the train of the appellant railroad company. The evidence fully sustains the verdict of the jury against the railroad company, and the instructions were, in form and substance, in conformity to the decisions of this court on the questions involved, and therefore no useful purpose would be conserved in discussing either the facts or instructions. The only question in the case which calls for hesitation in affirming the judgment is the argument of appellee's counsel.

In stating the case preliminary to the testimony, the counsel said: "I don't know positively what the defense which will be offered in this case will be, but presume that it will be the same old, stereotyped defense, that the mule ran upon the track, and they did not have time to avoid the killing of the mule after they saw it. The law is— Mr. McDonough: I object to that statement, your honor. The Court: The court is very liberal about the opening statements. It can be contradicted by those who follow. Mr. McDonough: I except." The appellant, it is seen, in proper manner, raised the question, first by directing an objection to the argument, thereby calling for and obtaining a ruling by the court, and then excepting to such ruling. This exception is properly brought forward in the motion for new trial.

Further objection was made to the closing argument, in which counsel related an incident illustrative of the feminine characteristic to say, "I told you so." It is not clear whether its application was intended to the "stereotyped defense," or some other forecast of the testimony. It was but a bit of pleasantry, which counsel desisted from pursuing promptly upon objection being raised, and no ruling of the court was asked upon it, and no exception taken.

Another objection to the concluding argument was made. Counsel for appellee was arguing the law applicable to the facts from his standpoint, when opposing counsel objected to his statement of the law, and said he desired to save an exception. The court replied, "The instructions say what the law is." No exception was taken to this ruling, and, even if the argument had been improper, the court's declaration to the jury to look to the instructions for the law was acquiesced in by appellant, as no exception was taken to this disposition of the objection.

The question recurs as to the argument in the opening statement, in which counsel anticipated the defense would be "the same old, stereotyped" one. The office of the opening statement is: "First, the plaintiff must briefly state his claim, and the evidence by which he expects to sustain it; second, the defendant must then briefly state his defense and the evidence he expects to offer in support of it." Kirby's Dig. § 6196. It is the duty of trial judges to see that counsel, in his opening statement, confines himself to a brief statement of his claim or defense and the evidence he expects to offer to sustain it. McFalls v. State, 66 Ark. 16, 48 S. W. 492; Marshall v. State, 71 Ark. 415, 75 S. W. 584. There have been many cases in this court involving alleged improper remarks of counsel, and many have been reversed therefor, and others have been affirmed notwithstanding improper remarks, and in others the remarks in question have been sustained as properly within the privilege of counsel. The subject, in its ever-varying form, may be found considered in Green v. State, 38 Ark. 304; Ry. v. Cavenesse, 48 Ark. 106, 2 S. W. 505; Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Holder v. State, 58 Ark. 473, 25 S. W. 279; Woodruff v. State, 61 Ark. 157, 32 S. W. 102; Ry. v. Sokal, 61 Ark. 130, 32 S. W. 497; Bennett v. State, 62 Ark. 516, 36 S. W. 947; Union Compress Co. v. Wolf, 63 Ark. 174, 37 S. W. 877; Gossett v. State, 65 Ark. 389, 46 S. W. 547; Redd v. State, 65 Ark. 475, 47 S. W. 119; Ry. v. Waren, 65 Ark. 626, 48 S. W. 222; McFalls v. State, 66 Ark. 16, 48 S. W. 492; Henshaw v. State, 67 Ark. 366, 55 S. W. 157; Magness v. State, 67 Ark. 594, 50 S. W. 554, 59 S. W. 529; Elder v. State, 69 Ark. 648, 65 S. W. 938, 86 Am. St. Rep. 220; Ry. v. Smith, 70 Ark. 179, 67 S. W. 865; German Ins. Co. v. Harper, 70 Ark. 306, 67 S. W. 755; Marshall v. State, 71 Ark. 415, 75 S. W. 584; Puckett v. State, 71 Ark. 62, 70 S. W. 1041; Willyard v. State, 72 Ark. 139, 78 S. W. 765; Ry. v. Boback, 71 Ark. 427 75 S. W. 473; Lee v. State (Ark.) 83 S. W. 916; Burris v. State (Ark.) 84 S. W. 723; Sing Fort v. State (Ark.) 85 S. W. 236; and probably other cases in the Reports. No ironclad rule can be laid down on the subject, but there are definite guides to arrive at the solution of the question whether the objectionable remarks present ground for reversal. From the above cases these propositions may be deduced: The control of argument is in the sound judicial discretion of the trial judge, and it is his duty to keep it within the record and within the legitimate scope of the privilege of counsel, and this he should do on his own initiative. If he fails to restrain counsel, then it is the right of opposing counsel to object to the argument. This should be a definite objection to the alleged improper remarks, and call for a ruling of the court thereupon; and if the court then fails to properly restrain and control the argument within its proper bounds, and to instruct the jury to disregard any improper remarks, and admonish the counsel making them, then an exception should be taken to the action of the court. A mere exception to argument, interposed to make a record in the appellate court, and not calling for a ruling of the trial court, is insufficient. When the ruling of the court is presented to the appellate court in proper manner, then it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issues; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion, the exercise of which is a matter of review. There are, however, a class of cases which present argument and remarks so flagrantly prejudicial, or counsel may be so persistent in their impropriety, that the commendable efforts of the trial judge to eradicate the evil effects of them will be unavailing. In such event, then, a new...