New York Cent Co v. Johnson, Nos. 455

CourtUnited States Supreme Court
Writing for the CourtSTONE
Citation279 U.S. 310,73 L.Ed. 706,49 S.Ct. 300
PartiesNEW YORK CENT. R. CO. v. JOHNSON (two cases)
Decision Date08 April 1929
Docket NumberNos. 455,456

279 U.S. 310
49 S.Ct. 300
73 L.Ed. 706
NEW YORK CENT. R. CO.

v.

JOHNSON (two cases).

Nos. 455, 456.
Argued March 8, 1929.
Decided April 8, 1929.
As Amended May 13, 1929.

[Syllabus from pages 310-312 intentionally omitted]

Page 312

Messrs. Sidney C. Murray, of Chicago, Ill., and Albert S. Marley, of Kansas City, Mo., for petitioner.

Messrs. Price Wickersham, John Atwood, and Oscar S. Hill, all of Kansas City, Mo., for respondents.

Mr. Justice STONE delivered the opinion of the Court.

Respondent in No. 456 brought suit in the circuit court of Jackson county, Mo., to recover for personal injuries alleged to have been caused by the negligent operation of one of petitioner's trains. The suit in No. 455 was brought in the same court by the husband of respondent in No. 456, to recover for the loss of her services. Both cases were removed to the District Court for Western Missouri, where they were tried together. Judgment there on a verdict for respondents was affirmed by the Court of Appeals for the Eighth Circuit. 27 F.(2d) 699. This court granted certiorari October 15, 1928, 278 U. S. 590, 49 S. Ct. 27, 73 L. Ed. —, the order allowing the writ directing

Page 313

that the argument in this court 'be limited to the question whether the alleged misconduct of counsel for the plaintiffs in their arguments to the jury was so unfairly prejudicial to the defendant as to justify a new trial.'

At the trial, there was evidence that respondent, while a passenger on petitioner's train, was thrown to the floor by a sudden and unusual motion of the train, receiving a blow on her head which caused paralysis of one side of the body, impaired locomotion, and other physical disabilities. All material allegations of the complaint were denied, including those specially setting up the cause and nature of respondent's injuries. In the course of the cross-examination of respondents' witnesses, petitioner's counsel elicited the fact that, following the accident, one of respondent's physicians had administered a treatment usually given for syphilis. He asked other questions tending to show, had favorable answers been received, that she had exhibited symptoms recognized to be those of this disease; that the Wasserman test for syphilis, which had been applied to her by her physician with negative results, was not necessarily conclusive as to its nonexistence; that other more reliable tests had not been applied; that the disease might cause the paralysis complained of and the treatment for it produce the other symptoms exhibited by respondent.

The opening statement for petitioner to the jury had contained no suggestion that the alleged condition of respondent was due to syphilis. No evidence to that effect was offered in its behalf, counsel contenting himself with calling witnesses to disprove only the negligence and the occurrence of the accident. In the closing argument, petitioner's counsel denied any belief that respondent was afflicted with the disease, and disclaimed any purpose to show that her present condition was due to it. He then for the first time suggested, although there was no

Page 314

evidence to support it, that her condition was caused by the administration, by one of her physicians, of a specific for syphilis in consequence of a mistaken diagnosis.

Two counsel for respondents participated in the closing argument. The first, who preceded counsel for petitioner, made the following statements to the jury, to which, at several points, objection was made, overruled, and an exception noted:

'But, gentlemen, the vilest defense made in this case, a defense which would bar that girl from all society, intimated in this case that she had the syphilis. That is the defense in this case, that she had syphilis.

'Gentlemen of the jury, they would charge her with a disease which would brand her as bad as a leper and exclude her from the society of decent people. That is the kind of a defense that is in this case, and I resent it. I resent the New York Central coming into this town and saying that that girl has the syphilis and trying to make this jury believe that she has the syphilis.

'She will be a misery to herself; every time she attempts to take a step and is unable to do so, she suffers mental anguish; every time she sees people watching her, and knowing what she is doing, she suffers mental anguish. And gentlemen, it is sought to say that that is the result of syphilis. Syphilis, one of the most-the worst disease that is known in human history, a disease that can never be freed from the body; a disease that is worse than leprosy. That is the defense in this case. And, gentlemen, with not one, not one scintilla of evidence in this case to justify it.'

The second counsel for respondents, whose argument followed that of petitioner's counsel and his disclaimer

Page 315

already mentioned, was permitted, over objection and exception, to say to the jury:

'You mean to tell me he (petitioner's counsel) didn't talk to those doctors about it? * * * That he wasn't aware of that, and he wasn't trying to put the stigma of indecency upon this young woman in his defense? You mean to say that he wasn't aware of that situation?

'Oh, I have been too long in this business of trying law suits not to know that. So I immediately came to the front and exposed him, and proved it to the hilt; so much so that they stopped. * * * Never again will you ever dare to put that letter of syphilis upon the brow of a decent woman—'

The Circuit Court of Appeals, in affirming the judgment for respondent, said, page 702 of 27 F.(2d):

'Both counsel for the plaintiff who addressed the jury stated that * * *

"The vilest defense made in this case, a defense which would bar that girl from all society, intimated in this case that she had the...

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151 practice notes
  • Zenith Radio Corp. v. Matsushita Elec. Ind. Co., Ltd., Civ. A. No. 74-2451
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 4, 1975
    ...the Court found that no "specific or definite" act had been either proscribed by the Act or alleged in the indictment. 255 U.S. at 89, 49 S.Ct. at 300. That is not the case here. The Antidumping Act of 1916 not only describes with ample specificity the conduct it forbids, but also adds the ......
  • Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., OHIO-SEALY
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 12, 1978
    ...of the lawyers were not evidence and were not to be considered in deciding the case. Compare New York Central Railroad Company v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 73 L.Ed. 706 (1929); With Koufakis v. Carvel, 425 F.2d 892, 901, 903 (2d Cir. 1970), on Page 842 which Sealy heavily re......
  • Mooney v. Terminal Railroad Assn. of St. Louis, No. 39202.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1945
    ...Davis v. Wells, 27 S.W. (2d) 714; Potashnick v. Pearline, 43 S.W. (2d) 790; Carpenter v. Kurn, 136 S.W. (2d) 997; N.Y.C.R. Co. v. Johnson, 279 U.S. 310, 49 S. Ct. 417, 73 L. Ed. 706; M., St. P. & S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S. Ct. 501, 75 L. Ed. 1243. (11) The verdict is so exc......
  • Townsend v. Boatmen's Natl. Bank, No. 34602.
    • United States
    • United States State Supreme Court of Missouri
    • April 21, 1937
    ...103; Nations v. United States, 32 Fed. (2d) 598; Southern Surety Co. v. Motlow, 61 Fed. (2d) 464; New York C. Railroad Co. v. Johnson, 279 U.S. 310, 73 L. Ed. 707; Beer v. Martel, 55 S.W. (2d) 482; Rice, Stix & Co. v. Sally, 176 Mo. 146; State v. Gunderson, 26 N.D. 294, 144 N.W. 659; State ......
  • Request a trial to view additional results
151 cases
  • Zenith Radio Corp. v. Matsushita Elec. Ind. Co., Ltd., Civ. A. No. 74-2451
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 4, 1975
    ...the Court found that no "specific or definite" act had been either proscribed by the Act or alleged in the indictment. 255 U.S. at 89, 49 S.Ct. at 300. That is not the case here. The Antidumping Act of 1916 not only describes with ample specificity the conduct it forbids, but also adds the ......
  • Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., OHIO-SEALY
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 12, 1978
    ...of the lawyers were not evidence and were not to be considered in deciding the case. Compare New York Central Railroad Company v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 73 L.Ed. 706 (1929); With Koufakis v. Carvel, 425 F.2d 892, 901, 903 (2d Cir. 1970), on Page 842 which Sealy heavily re......
  • Mooney v. Terminal Railroad Assn. of St. Louis, No. 39202.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1945
    ...Davis v. Wells, 27 S.W. (2d) 714; Potashnick v. Pearline, 43 S.W. (2d) 790; Carpenter v. Kurn, 136 S.W. (2d) 997; N.Y.C.R. Co. v. Johnson, 279 U.S. 310, 49 S. Ct. 417, 73 L. Ed. 706; M., St. P. & S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S. Ct. 501, 75 L. Ed. 1243. (11) The verdict is so exc......
  • Townsend v. Boatmen's Natl. Bank, No. 34602.
    • United States
    • United States State Supreme Court of Missouri
    • April 21, 1937
    ...103; Nations v. United States, 32 Fed. (2d) 598; Southern Surety Co. v. Motlow, 61 Fed. (2d) 464; New York C. Railroad Co. v. Johnson, 279 U.S. 310, 73 L. Ed. 707; Beer v. Martel, 55 S.W. (2d) 482; Rice, Stix & Co. v. Sally, 176 Mo. 146; State v. Gunderson, 26 N.D. 294, 144 N.W. 659; State ......
  • Request a trial to view additional results

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