Morris v. Kramer Bros. Co.

• Decision Date: 28 September 1921
• Docket Number: 16.
• Citation: 108 S.E. 381,182 N.C. 87
• Parties: MORRIS v. KRAMER BROS. CO.
• Court: North Carolina Supreme Court

108 S.E. 381

182 N.C. 87

MORRIS v. KRAMER BROS. CO.

No. 16.

Supreme Court of North Carolina

September 28, 1921

Appeal from Superior Court, Pasquotank County; Allen, Judge.

Action by William Morris against the Kramer Bros. Company. Judgment for plaintiff, and defendant appeals. New trial.

This action was brought to recover damages for injuries alleged to have been caused by defendant's negligence. Plaintiff had been employed by the defendant to work in his sawmill, and was engaged, at the time of his injury, on the platform in loading sawed lumber upon trucks preparatory to hauling it to the dry kilns, or to the yard of the mill. The lumber was brought to the platform by a chain or conveyor, and, while so performing his duties, he was knocked from the platform by a heavy board, which had fallen from the conveyor, and injured. Plaintiff alleged negligence in several particulars. Defendant answered and denied that there was any negligence on their part, and pleaded assumption of risks and contributory negligence.

There was much evidence taken upon the questions of negligence contributory negligence, and assumption of risks, and exceptions entered to rulings, but they need not now be considered, as we are of the opinion that a material error was committed in another respect. Defendant pleaded that the plaintiff had executed a release to them from all damages growing out of said alleged injury, and Mr. Hoag, an attorney at law of Norfolk, Va., who procured the release, was examined at length, as a witness for the defendant, in regard to its execution, the plaintiff having alleged that the release was obtained by fraud or mistake. The following appears in the record of the case as to what occurred between the judge and the witness, during the redirect examinations of the witness Mr. Hoag:

At this point his honor, the jury being present, announced that he wanted to ask the witness a question, and did so as follows:

"Q. You say you are a lawyer in Virginia? A. Yes, sir.

Q. Is it in accordance with your idea of professional ethics in Virginia for a lawyer to go to a man and approach him, if he has not brought any lawsuit, and get written statements from him? A. Absolutely so. We do not approach him if he has employed a lawyer first, but if he has not we do that quite frequently. It is considered ethical.

Q. I wish you would show me one of the rules."

To all the foregoing questions by the court, the defendant, in apt time, objected. Objection overruled, and defendant excepts. His honor continued:

"I would like to see the ethics for my own information. Is it ethical for a lawyer of one state to go into another state and prepare a case when he is not licensed in that state? A. We have done that so frequently in Virginia without any question of the bar, just as a matter of information so I could make a settlement. I came here to ascertain the facts."

To the foregoing questions by the court, the defendant, in apt time objected. Objection overruled, and defendant excepts. The court continues:

"I don't want the jury to be prejudiced against the witness on account of my asking these questions. It is so unusual for a lawyer from another state to come into the state, doing professional work, that I wanted to see what standard he was governed by.

Q. You don't practice in this state? A. No, sir.

I think it is the duty of the court to look into those matters and protect anything wrong going on, but I don't see anything wrong going on in this case. I think it is proper for the court to inquire, but the jury is not to consider it at all; it is a matter between witness and court, and he being a lawyer."

To the foregoing questions and statements by the court, the defendant, in apt time, objected. Objection overruled, and defendant excepts.

This dialogue between the judge and the witness was duly and specially excepted to by the defendant as it progressed, and has been assigned as error by it.

There was a verdict, followed by a judgment, for the plaintiff, and defendant appealed.

Hughes, Little & Seawell, of Norfolk, Va., and W. A. Worth, of Elizabeth City, for appellant.

Meekins & McMullan, of Elizabeth City, for appellee.

WALKER, J. (after stating the facts as above).

We will repeat here what we said in Bank v. McArthur, 168 N.C. 48, at page 52, 84 S.E. 39, 40 (Ann. Cas. 1917B, 1054):

"We are of the opinion that the remark of the learned and unusually careful judge, in regard to calling [a certain witness] should not have been made, and was calculated, as an intimation, if not a direct expression, of opinion upon the facts, to prejudice the plaintiff, and is forbidden by the statute, which provides: 'No judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion as to whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon.' There have been numerous decisions upon this statute, and this court has shown a fixed purpose to enforce it rigidly as it is written. There must be no indication of the judge's opinion upon the facts, to the hurt of either party, either directly or indirectly, by words or conduct. The judges should be punctilious to avoid it, and to obey the statutory injunction strictly. We are absolutely sure that they fully desire to do so, and their occasional expressions which have come before this court for review and held to be violations of the statute have evidently been inadvertent, but none the less harmful. The evil impression when once made upon the jury becomes well-nigh ineradicable. Judge Manly, who was one of the most eminent and just of our judges, said in State v. Dick, 60 N.C. 440: 'He [the presiding judge] endeavored to obviate the effect of his opinion by announcing in distinct terms the jury's independence of him, but this was not practicable for him to do. The opinion had been expressed and was incapable of being recalled. The object [of the statute] is not to inform the jury of their province, but to guard them against any invasion of it. The division of our courts of record into two departments--the one for the judging of the law, the other for the judging of the facts--is a matter lying on the surface of our judicature, and is known to everybody. It was not information on this subject the Legislature intended to furnish, but their purpose was to lay down an inflexible rule of practice, that the judge of the law should not undertake to decide the facts. If he cannot do so directly, he cannot indirectly; if not explicitly, he cannot by innuendo. What we take to be the inadvertence of the judge, therefore, was not cured of its illicit character by the information which he immediately conveyed. The error is one of the casualties which may happen to the most circumspect in the progress of a trial on the circuit. When once committed, however, it was irrevocable, and the prisoner was entitled to have his case tried by another jury.' And to the same effect did Justice Hoke speak in State v. Cook, 162 N.C. 586, citing and approving S. v. Dick: 'The

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