Tri-State Transit Co., of Louisiana, Inc. v. Westbrook

• Decision Date: 15 May 1944
• Docket Number: 4-7339
• Citation: 180 S.W.2d 121,207 Ark. 270
• Parties: Tri-State Transit Company of Louisiana, Inc., v. Westbrook
• Court: Arkansas Supreme Court

180 S.W.2d 121

207 Ark. 270

Tri-State Transit Company of Louisiana, Inc., v. Westbrook

No. 4-7339

Supreme Court of Arkansas

May 15, 1944

Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge.

Reversed.

Bridges Bridges, Young & Gregory, for appellant.

Coffelt & Kirby, for appellee.

Knox Justice. Mr. Justice Robins dissents.

OPINION

Knox Justice.

Appellee, a Negro resident and citizen of Saline county, Arkansas, being in Monroe, Louisiana, and desiring to go to Shreveport, purchased a ticket for passage on appellants' through bus operating between Meridian, Miss., and Shreveport, La., which was due to leave Monroe about 2 o'clock a. m., January 20, 1943. While the driver of the bus was in the station attending to certain duties, appellee boarded the bus and took a seat thereon. The bus driver testified that the bus had been crowded all the way from Meridian and some passengers had been forced to stand, some twenty-five passengers were going on through, most of whom had gotten off the bus at Monroe; that it was the practice of the company to hold for their reoccupancy the seats of through passengers who temporarily left the bus at any station, and to this end additional passengers were not taken on the bus until the through passengers had returned thereto, and then the new passengers were permitted to board the bus, first surrendering their tickets to, and taking a receipt from the driver. When the driver of the bus returned and found that appellee had boarded it in his absence he directed that he get off and await his proper turn to reboard.

The testimony as to what took place immediately afterwards is in conflict.

Appellee was the sole witness testifying in his behalf as to circumstances of the rencounter, and his testimony tends to show that he was sober and behaving himself properly at the time; that he got up in obedience to the driver's order and started off the bus; that the driver stepped off in front of him and as he stepped off the bus the driver hit him over the head with a crank without any provocation or warning whatever, knocked him to the pavement and drove off and left him lying there.

Six witnesses, the bus driver and five passengers, testified on behalf of appellants and their testimony tends to show that appellee was drunk at the time, and cursed the driver when he was ordered off the bus; that he got off the bus and hit the driver with his fist, and that the driver in self-defense struck at him with the crank, which appellee knocked out of his hand; that while they were fighting, an army sergeant standing nearby picked up the crank and struck appellee over the head with it several times and ended the fight.

In this action, the jury awarded appellee $ 500 as compensatory damages and also $ 500 as punitive damages. While several assignments of error are set out in the motion for new trial, only two points are argued, to-wit: (1) error in admission of evidence on crossexamination, and (2) improper argument on the part of counsel which was not corrected by proper and suitable action on the part of the trial court. These matters are set out in full in assignments 8, 10 and 11 of the motion for new trial as follows:

"8. Because the court erred in admitting, over the objections and exceptions of the defendants, the following testimony of the witness, Charles Musick, on crossexamination: 'Mr. Coffelt: You fellows in Louisiana knock them (Negroes) in the head when you want to, don't you? Mr. Gregory: We object to that. Mr. Coffelt: That is what you do -- knock them in the head when you want to and get by with it? A. No. Q. Have you heard of it being done? The Court: Go on. Mr. Gregory: Save our exceptions. Mr. Coffelt: Isn't that the practice in that country when you deal with Negroes -- when they get out of line you knock hell out of them? A. Yes, when they get out of line. Q. And that is what you did in this case -- took the law in your own hands? A. I did not.'"

"10. Because the court erred in failing to admonish counsel for plaintiff against making improper and prejudicial statements, after being requested to do so by counsel for defendants, such request resulting from the following statement made by plaintiff's counsel during the opening argument to the jury, all of which was over the objections and exceptions of the defendants: 'Mr. Coffelt: Now about these depositions that were framed. Mr. Gregory: I object to that line of argument, and ask the court to tell the jury not to consider what Mr. Coffelt has said and also to admonish him not to make such improper statements. The Court: The jury should only consider the evidence before you.'"

"11. Because the court erred in permitting and allowing plaintiff's counsel to state, in his closing argument to the jury, the following, which the court refused to withdraw from the jury's consideration at the request of the defendants, all of which was over the objections and exceptions of the defendants: 'Mr. Coffelt: I don't know whether the jury knows much about court procedure or not. They accuse this Negro of perjury. I want to tell you that they have a right to investigate this Negro after this trial the same as before and to check upon every word of his testimony, and in the event you should find for him in this case, and it is later found that he has perjured himself in any instance, the defendant in this case has fifteen days to file a motion for a new trial and they can set up any perjured testimony in that motion they want to. Mr. Gregory: I object to that, your honor, because that kind of argument is improper and highly prejudicial and it hasn't got anything to do with the issues to be tried by this jury. Mr. Coffelt: Your honor, they accuse this Negro of perjury. The Court: Objection overruled. Mr. Gregory: Save my exceptions. Mr. Coffelt: Yes, lady and gentlemen of the jury, the defendant has ample opportunity after a case is decided the same as before to investigate the plaintiff and if they can prove he has been guilty of perjury, they have that right and they know it, and they can set it up in their motion for a new trial and prove it, in the event you should find for the plaintiff, and they have fifteen days to do so, and to ask this court for a new trial on that ground. I say to you this Negro has told the truth all the way through, and as I told you at the outset of this trial it is up to you to say where the truth lies. If you believe he has told the truth, find for him. If you don't believe he has told the truth, find against him. That's the issue for you to decide.'"

The purpose of the questions propounded to Musick, the bus driver above quoted, was to disclose whether the people of his community generally accepted the doctrine, to which he himself also subscribed, that quick corporal punishment should be administered to Negroes "when they get out of line." It was within the discretion of the trial court to allow such cross-examination to test the credibility of the witness, especially so since he testified that although the Negro applied to him a vile epithet he nevertheless took no action until after he was assaulted. Hofler v. State, 16 Ark. 534; Hughes v. State, 70 Ark. 420, 68 S.W. 676; Carter v. State, 196 Ark. 746, 119 S.W.2d 913.

The argument of counsel presents a more serious question.

It has been stated generally that "the control of argument is in the sound judicial discretion of the trial judge" and "reversal rests upon (his) abuse of discretion . . . in not confining the argument within its legitimate channels." Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428.

In his work "Judicial Discretion of Trial Courts," Mr. Bowers, after pointing out that the term "judicial discretion" is in fact a "misnomer" and that its companion term "abuse of discretion" is "unhappily phrased" admits that such terms have "become so deeply imbedded in the legal nomenclature that any attempt to dislodge them would be futile." Later the same author says: "While trial courts are clothed with considerable discretion in controlling the arguments, little hesitancy is shown by appellate courts in reviewing the action taken below, and reversals are ordered, seemingly with alacrity, when it has been made to appear that prejudice resulted from improper argument of counsel." Bowers -- Judicial Discretion of Trial Courts, § 283, p. 318.

The text above quoted is in conformity with pronouncements of this court. In the early case of Vaughan v. State, 58 Ark. 353, 24 S.W. 885, the court, although stating that control of argument was within the sound discretion of the trial court, nevertheless declared that the exercise of that discretion was subject to review, and added "Whenever it occurs to us that any prejudice has most likely resulted therefrom (improper argument) we shall not hesitate to reverse on that account."

In the case of Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428, it was said: ". . . . it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issue; 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 . . . In the final analysis, the reversal rests upon an undue advantage having been secured by argument which has worked a prejudice to...