Little v. Hughes

• Decision Date: 27 December 1961
• Docket Number: No. 5419,5419
• Citation: 136 So.2d 448
• Parties: Mrs. Hazel Jenkins LITTLE v. Mrs. Minnie Fay Powell HUGHES.
• Court: Court of Appeal of Louisiana — District of US

Page 448

136 So.2d 448

Mrs. Hazel Jenkins LITTLE v. Mrs. Minnie Fay Powell HUGHES.

No. 5419.

Court of Appeal of Louisiana, First Circuit.

Dec. 27, 1961.

Porteous & Johnson, New Orleans, for appellant.

Sims & Mack, Hammond, for appellee.

Before ELLIS and HERGET, JJ., and MILLER, J. pro tem.

MILLER, Judge pro tem.

Mrs. Hazel Jenkins Little seeks damages from Mrs. Minnie Fay Powell Hughes for personal injuries resulting from an automobile accident which occurred on October 23, 1957 in Tangipahoa Parish. Mrs. Little was a guest passenger of Mrs. Hughes when Mrs. Hughes' vehicle was struck from the rear by an automobile operated by Mr. Vernon Simmons.

The suit was originally filed against State Farm Mutual Automobile Insurance Company and Mrs. Hughes, but plaintiff voluntarily dismissed her suit against State Farm prior to trial. Notwithstanding this dismissal, the insurance policy showing that Mrs. Hughes had coverage in the sum of $10,000.00 for any one person injured was made a part of the record which went before the civil jury.

Jurisdiction existed in Livingston Parish by virtue of the fact that Mrs. Hughes resided in that parish at the time the suit was filed. The case was tried before a jury on February 23, 1960 and after hearing the evidence, the arguments of counsel and the charge by the judge, the jury concluded that the plaintiff was entitled to judgment in the sum of $10,000.00. Judgment was granted in that sum and defendant has appealed.

For purposes of oral argument before this court, this case was consolidated with the case of Claude Frank Little v. State Farm Mutual Automobile Insurance Company and Mrs. Minnie Fay Powell Hughes, which was tried on October 8, 1958 before the 21st Judicial District Court, Honorable H. R. Reid, presiding, in the Parish of Tangipahoa. Jurisdiction existed in that court by virtue of the fact that the accident occurred in Tangipahoa Parish. In the trial in Tangipahoa Parish, Claude Frank Little sought to recover medical and other expenses incurred as a result of the injuries sustained by his wife Mrs. Hazel Jenkins Little in the same accident. Mr. Little recovered judgment in the sum of $2,198.79 and the defendants appealed.

There are some procedural and incidental questions which are presented by this appeal, and we shall rule on these prior to considering the merits. The preliminary questions are:

(1) Is the discovery deposition of an adverse party admissible in evidence?

(2) Can civil jurors be peremptorily challenged and excused after having been accepted by both sides and after having taken their oath and their place in the jury box?

(3) Does the trial judge have the right to prevent counsel from reading from a lawbook during the course of his closing argument to the jury?

(4) Can a party argue to the jury the value of the plaintiff's claim by use of a previously prepared cardboard chart which attempted to place value by the hour on pain and suffering?

The discovery deposition of a party may be used by an adverse party for any purpose. LSA-R.S. 13:3745 so provided at the time this case was tried, and this provision of our law is now found in Section 2 of Article 1428, LSA-Code of Civil Procedure. Therefore the defendant's objection to the plaintiff's offering of the discovery deposition of Mrs. Hughes should have been overruled.

The Code of Civil Procedure which became effective January 1, 1961, provides in Article 1766 that no party has the right to challenge peremptorily after the entire jury has been accepted and sworn. However, there was no similar provision in the Code of Practice which was in effect at the time this case was tried. We think the trial judge had discretion to permit either party to exercise peremptory challenges prior to the taking of evidence in cases tried prior to January 1, 1961.

During closing argument to the jury the defendant's eminent counsel was attempting to quote from the case of Southern Farm Bureau Cas. Ins. Co. v. Caldwell, La.App., 111 So.2d 842, when the trial judge interrupted the argument and enjoined counsel from such action. Defendant contends that by this action, the learned trial judge kept from the jury a basic and intrinsic portion of defendant's summation; that the trial judge created in the minds of the jurymen the unerasable conviction that counsel for defendant had attempted to 'put one over' on the plaintiff; that Articles 484 and 486 of the Code of Practice in effect at the time of the trial, do not restrict counsel except as to matters of courtesy and dignity and nowhere therein are there placed any restrictions upon the contents or methods of presentation by counsel; that the error committed requires the setting aside of the verdict of the jury and the entering of a new trial. Neither counsel has cited any decisions concerning this question.

We do not think the trial judge erred in his ruling which prevented counsel from reading from a lawbook to the jury during his closing argument. The law applicable to this question at the time of the trial was Code of Practice Articles 515 and 516. At first blush, it would appear that the provision of Code of Practice Article 515, that

'The case shall be pleaded before the jury in the same manner as before the court; * * *.'

would surely mean that counsel could quote from lawbooks in their argument to the jury, for it would be unheard of to prevent counsel from referring to a lawbooks during his closing argument to the court. However, it should be noted that should the court, sitting without the jury, rule that counsel could not argue from a lawbook in his closing argument, this, per se, would not constitute reversible error. But just as it is rather difficult to understand how an attorney might give his closing argument to the court without the right to refer to a lawbook, it is also clear that in a civil jury trial an attorney cannot successfully contend that he has the right to delay his argument until he can get a transcript of the testimony, and further to have a delay within which time to prepare written briefs with the right to submit those briefs to the jury. Yet, each of these last mentioned privileges are regularly accorded to counsel for the submission of their cases before the court. So it appears clear that the provision that 'The case shall be pleaded before the jury in the same manner as before the court * * *' is not without some limitation. And that limitation is set forth in the article which follows, and reads:

'Article 516. In this charge the judge must limit himself to giving the jury a knowledge of the laws applicable to the cause submitted to them * * *.'

Since it is the duty of the judge to charge the jury as to the law applicable to the case, the court has the corollary right, should he desire to exercise it, to require that the jury gets only the correct law applicable to the case. In order to reduce the possibility of confusing the jury, the trial judge has the right to decide what law is applicable to the case and to prevent counsel from arguing other law. Should the attorneys have the right to cite and quote from cases which are in their view apposite to the case, but which are distinguishable by the court, the force and effect of the court's charge is diminished in the minds of the jury and the opportunity for confusion is increased. The jury might well conclude that the law read by counsel from a lawbook is more likely to be the law applicable to the case than is that which is read by the judge from a typewritten charge. Furthermore, opposing counsel would have no opportunity to read the cited cases so that he could make a proper effort to distinguish them during the course of his argument to the jury.

When counsel reads from lawbooks, it is essential that some facts be stated to show the similarity and dis-similarity to the case at bar. To this extent, counsel would be taking advantage of the evidence which had been offered in the cited cases, and by so using this evidence and reading the legal principles stated by the court in relationship thereto, counsel would be arguing that the decision of the court in those cases was controlling of the facts involved in the case before the jury. According to the annotation in 77 A.L.R. at page 653, it is stated that the majority rule is that the correct practice is for the trial court to refuse to permit lawbooks to be read to the jury since such a practice might tend to confuse rather than to aid the jury in its determination of the facts and that in civil cases questions of law are exclusively for the court and questions of fact for the jury.

In Roberts v. Cooper, 61 U.S. 467, 15 L.Ed. 969, the United States Supreme Court stated that it is the province of the court to instruct the jury as to the principles of law affecting the case and that counsel could not appeal to a jury to decide legal questions by reading cases to them. Other cases in point are Clark v. Iowa Cent. R. Co., 1913, 162 Iowa 630, 144 N.W. 332; Hughes v. General Electric Light & Power Co., 1900, 107 Ky. 485, 54 S.W. 723; Baltimore & Ohio R. Co. v. Kean, 1886, 65 Md. 394, 5 A. 325; Watkins v. Boston and N.R. Co., 1927, 138 A. 315; Williams v. Brooklyn Elevator R. Co. 1891, 26 N.E. 1048; Lewter v. Lindley, Tex.Civ.App.1905, 89 S.W. 784; Blum v. Jones, 1894, 23 S.W. 794; Olney v. Boston & M.R. Co., 1904, 59 A. 387. Also see discussion at 2 Ruling Case Law, Argument of Counsel, Sec. 2, p. 422.

We do not wish to be understood as holding that counsel cannot argue to the jury the law which the court has ruled is applicable to the case. Counsel will have ample opportunity to learn what law the court considers applicable to the case by virtue of the provision of LSA-C. of C.P. Article 1793 (and so far as the record shows, this was the procedure followed in this case) which requires that the court inform counsel of its action upon the requested charges prior to counsel's argument to the jury. Since the trial judge has...