Maryland Casualty Co. v. Reid

• Citation: 76 F.2d 30
• Decision Date: 01 March 1935
• Docket Number: No. 7372.,7372.
• Parties: MARYLAND CASUALTY CO. v. REID.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

76 F.2d 30 (1935)

MARYLAND CASUALTY CO. v. REID.

No. 7372.

Circuit Court of Appeals, Fifth Circuit.

March 1, 1935.

Chas. B. Walker, Chas. D. Smith, and A. H. Boyd, all of Beaumont, Tex., for appellant.

M. G. Adams, of Beaumont, Tex., for appellee.

Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

This suit under the Texas Workmen's Compensation Act (Vernon's Ann. Civ. St. Tex. art. 8306 et seq.) has been three times tried to a jury on substantially the same evidence. The first jury returned a verdict for plaintiff. The District Judge set the verdict aside. The second jury, directed by the judge on the ground of insufficient evidence, to do so, returned a verdict for the defendant. We found the evidence sufficient, reversed the judgment, and remanded the cause for another trial. Reid v. Maryland Casualty Co. (C. C. A.) 63 F.(2d) 10. The third jury found for plaintiff. This appeal is from the judgment on that verdict. Only two errors are assigned, one complains of remarks made by appellee's counsel in his closing argument to the jury; the other, that the verdict on the issue of plaintiff's dependency is not supported by the evidence. No error is assigned in connection with the charge, either to the giving or the refusal of instructions. No request was made for a directed verdict. In these circumstances, whether the evidence is sufficient to support the verdict is not properly before us. We therefore overrule this assignment without inquiring into the question it seeks to raise, and pass to the consideration of the remaining error assigned, that on the argument.

The bill of exceptions, No. 2, relied on as supporting this assignment contains only this:

"After both sides had concluded the testimony and rested, and the cause was being argued to the jury, Mr. C. W. Howth, counsel for plaintiff, in his closing argument to the jury, stated to the jury:

"`The evidence in this case shows that this army doctor, Dr. Cox, was paid by the defendant for his testimony and the evidence shows that some of the other witnesses were paid by the defendant for their testimony. Dr. Cox laid down the rule that an injury or blow did not affect an arrested case of syphilis and would not cause the dormant case of syphilis to flare up and become active, and stated that many medical authorities on syphilis, including one written by Dr. Stokes, laid down this rule. We brought Dr. Ferguson here with that very book by Dr. Stokes and it says the very opposite to what that army doctor said is true. Now, if this defendant's money can bring this high-class army doctor here to give that kind of testimony, what would it do with a Greek restaurant keeper?' Whereupon counsel for defendant immediately arose and objected and excepted to such argument, and requested the court to instruct the jury to disregard such argument.

"Whereupon the court responded `I presume that it is an argument of fact but not a valid one.'

"To which argument and action of the court in refusing to instruct the jury not to consider the same, defendant in open court excepted."

We are referred to no other place in the record at all bearing on this matter. We find but one.¹ No motion was made to declare a mistrial. No request was made for any other action. For all that appears, defendant chose rather to speculate on the verdict in reliance on its exception, than to seek relief through a mistrial, or more binding instructions. Nor, of all the argument that there must have been, does, the record make mention of any, except this single excerpt. We are thus asked to nullify all of the proceedings of this thrice tried case, and put the judge in error, upon the bald proposition that the action of the court in connection with these excerpted remarks, constitutes such serious and substantial abuse of his function and discretion as administrator, as to completely invalidate an otherwise errorless trial. We think the claim that this may be done proceeds from a misconception of the nature of a common-law trial, and of the function and duties of the trial court and of this court. Such a trial is no cool process of mere science. It is not, it cannot be, rigidly formal, coldly logical. In a trial proof is but the means to an end. That end, not the stirring of a mild and passive sympathy in the minds of the triers with the litigant's point of view, but the inducing there of the impulse to believe, the will to say "for the plaintiff," or "for the defendant." All preparation for judicial proof looks toward, and all such proof is finally presented in a trial, an action in form, dramatic in every case, in fact, overwhelmingly so in many of them. The very nature of a jury trial makes this so. Here men deal in dramatic fashion with the human equation in the most illusive forms. Here men strive for the mastery, not over each other, but over the minds of the triers, to induce there the will to believe, and to declare. Minds which are induced to and do reach their conclusions in the atmosphere of drama, and often under the pressure of emotional stress, by the loose and ordinary methods of persuasion and influence common to the street. It is this, that the conclusions of the triers do not come as the result of cold and careful reasoning upon data coolly, carefully, and in a wholly nonpartisan way supplied, which gives its intensely dramatic character to a trial. It affects the witnesses, the lawyers, the litigants, the triers themselves. It is entirely true that many verdicts in criminal and in civil cases find their real spring in an atmosphere generated by the trial, where things felt but unseen, sometimes real, sometimes illusory, arising out of but more than the relevant testimony, in the end induce the verdict more than the testimony itself does. Especially in criminal cases, to which public interest attaches, is this dramatic atmosphere present and operating, and it is rare that the verdict in such a trial is wholly free from the influences, the feelings, the antagonisms which the actions of the litigants and the course of the trial have aroused and injected into it. It is of the essential nature of a jury trial, then, that though its purpose is the same as that of a scientific investigation, to fully present the gathered facts which will furnish the grounds for correct induction, these gathered facts are presented for decision in a dramatic setting, are introduced in a dramatic way, and the trial itself must come to a dramatic end in a solemn and fateful pronouncement. For a common-law jury trial is at last a trial, with its attack and its defense, its action and its suspense, and not a scientific inquiry, which in a leisurely and impersonal way may continue indefinitely until the quest is at an end. Because these things are so of jury trials, it is of the genius of our institutions that they be conducted under the firm and steady guidance of judges as administrators, who having minds trained and personalities adequate to the task, are held primarily responsible for their just outcome.² Because these things are so, in a federal court at least, the conduct of jury trials is largely confided to the District Judge, who is expected to have and exercise trial skill of the highest order, and a wise and just discretion. His chief function, his primary object, is to keep the case within legal bounds by admonitions and rulings from its beginning to its end. He uses the rules of evidence as means, not ends, to elicit and confine the case to the best evidence available in order to bring the truth to light. Trained in the principles and problems of proof, knowing how to value the pertinent, to reject the impertinent, he uses other trial rules to accomplish the same end. Nor does his function as overseer, superintendent, and administrator of the trial end with its ending.

At common law and by statute, the federal District Judge is charged with the duty of granting a new trial in a jury case where, in his opinion, it went unjustly and injuriously out of bounds.³ This court, as to law cases, is a court of error. We do not retry the case. We review the record made in it for reversible error, error by the judge, in conducting or failing to conduct the trial, which has, by permitting the case to get out of bounds, prejudiced the just result. In this review we are guided by the statute just quoted, note 3, supra. We do not reverse cases for insubstantial error. Abstract inerrancy is hardly possible in the trial of a case in the federal court; it is never an essential to a valid trial there. Jennings v. United States (C. C. A.) 73 F.(2d) 470; Community Natural Gas Co. v. Henley (C. C. A.) 54 F.(2d) 59. Too much is said and done about too little in the heat and hurry of a trial, for it all to be important. Things of no moment in their transpiring are not made momentous merely by making record of them. Therefore, though the District Judge is an administrator primarily charged with the just conduct of the trial, he may not ordinarily be put in error merely because...