Western & A.R. Co. v. Morrison

• Decision Date: 05 August 1897
• Citation: 29 S.E. 104,102 Ga. 319
• Parties: WESTERN & A. R. CO. v. MORRISON.
• Court: Georgia Supreme Court

29 S.E. 104

102 Ga. 319

WESTERN & A. R. CO. v. MORRISON.

Supreme Court of Georgia

August 5, 1897

Syllabus by the Court.

1. Where, in the trial of an action for damages against a railroad company for personal injuries, the evidence as to the company's alleged negligence was conflicting, it was legitimate for the plaintiff's counsel to argue to the jury that the failure of the defendant to introduce and examine as a witness one of its employés, who was present at the time when the injuries in question were sustained, was a circumstance from which an inference could be drawn that, of this employé had been introduced and examined, he would have testified to facts prejudicial to the defendant. This is so whether the counsel's contention as to this matter was under all the circumstances in proof, well founded or not nor was such argument out of order because defendant's counsel had caused the employé in question to be present in court, so that he could have been introduced and examined by the plaintiff's counsel.

2. If, in view of the entire evidence, it was incumbent upon the court to give to the jury any instruction with reference to the defendant's failure to examine such employé as a witness, it was certainly right to refuse to give in charge a request to the effect that the production of the employé in court by the defendant was sufficient to relieve it of any presumption or inference that, in case he had been examined, he would have sworn to facts showing negligence on the part of the defendant.

3. There was no material error in admitting evidence; the requests to charge, so far as pertinent and legal, were covered by the general charge given to the jury; there was, in view of the entire charge, no error in those portions of it complained of in the motion for a new trial; and the verdict was warranted by the evidence.

4. It will impart no strength to a defense for the defendant to produce a witness not examined by himself, call attention to his presence, and put him at the service of the plaintiff for examination; but, where this is done, such strength as the defense really has on the evidence before the jury is not subject to be impaired or discounted by any inference to its disadvantage similar to that which might have been drawn from the absence of this witness, had he not been produced or accounted for. If more evidence were needed to establish it, the defense would fail for that reason; if more were not needed, it could not, under these circumstances, be required. No unfavorable inference or presumption could arise from mere failure to examine the witness, and such failure was not legitimate matter for comment by counsel. Per Simmons, C.J., dissenting.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by J. C. Morrison against the Western & Atlantic Railroad Company to recover for personal injuries received while an employé of defendant. From a judgment for plaintiff, defendant brings error. Affirmed.

Payne & Tye, for plaintiff in error.

Van Epps, Ladson & Leftwich, for defendant in error.

LUMPKIN P.J.

We shall not discuss in detail the numerous grounds of the motion for a new trial, the overruling of which is the error complained of in the present bill of exceptions. It is a case where an employé of a railroad company, upon conflicting evidence, obtained a recovery for personal injuries. There are no important questions of law involved, except those specially dealt with in the headnotes. The plaintiff's right to a verdict did not turn upon any presumption of negligence raised by law against the defendant. It was a case in which he introduced evidence tending to prove the company's alleged negligence, to which it replied with evidence tending to show due diligence on its part; and it was therefore simply a matter for the jury to determine upon which side the evidence preponderated.

It appears from the record that one Waters, who was an employé of the defendant in the capacity of fireman at the time when the injuries in question were sustained, and who had excellent opportunities for knowing the truth of the matter, was not introduced as a witness at the trial. He was, however, at the instance of the company, present in court, and this fact was known to the plaintiff's counsel. The latter, in his argument to the jury, contended that the failure of the defendant to introduce and examine this witness was a circumstance from which an inference could be drawn that, if he had been so introduced and examined, he would have testified to facts prejudicial to the defendant. The court was requested to compel the plaintiff's counsel to desist from making such an argument, on the ground that it was improper and illegal, and was also requested to declare a mistrial because of such "improper argument." The court held that the argument was not improper, and refused to declare a mistrial because of it. It was urged here that these rulings were both erroneous, for the reason that when the defendant produced the witness in court, so that he could have been introduced and examined by the plaintiffs' counsel, if he had chosen to do so, there could be no proper inference that he knew anything which would be detrimental to the company. The court also refused to charge the following written request presented by counsel for the defendant: "As plaintiff's counsel have argued that as only the engineer was examined as a witness, and not the fireman, that this was a circumstance from which the jury might infer that, had the fireman been introduced, this testimony might have shown negligence on the part of the company, I charge you that when the defendant company, in open court, tendered this fireman Waters as a witness to be introduced by plaintiff, if he desired, this was sufficient to relieve defendant of this presumption." While the arguments of counsel should be confined within legitimate bounds, they should not be too greatly restricted. In Spence v. Dasher, 63 Ga. 432, Jackson, J., said: "Counsel should have ample latitude in argument, and this court will not interfere when it is allowed by the presiding judge, except in cases of clear abuse of discretion and serious damage to the party complaining." Again, in Inman v. State, 72 Ga. 278, Justice Blandford remarked: "Counsel are allowed the largest liberty in the argument of cases before juries, and whether the argument be logical or illogical, or whether the inferences and deductions drawn by them are correct or not, this court will have no power to intervene." And in Taylor v. State, 83 Ga. 659, 10 S.E. 442, the same justice remarked that a certain argument made by counsel "may have been very illogical, but the court could not prevent counsel from drawing illogical deductions from testimony which had been introduced." These are only a few of the instances in which it has been held that considerable latitude is to be allowed counsel in discussing their cases before juries. It is one thing for an attorney to contend that "such and such" a proposition is true, or that "such and such" an inference is deducible from a given state of facts or circumstances, and quite a different thing for the judge to inform the jury that the positions taken by the attorney are correct. If the law imposed upon the judge the duty of interfering with arguments before juries whenever, in his opinion, the reasoning of counsel was unsound, we apprehend that interruptions of this sort would be very frequent indeed.

It is not necessary to rule in the present case that the contention of plaintiff's counsel as to the effect of the defendant's failure to introduce the witness Waters was well taken. It was, after all, a matter to be passed upon by the jury. Nor do we think the argument upon this matter was out of order because the defendant's counsel had caused Waters to be present in court so that he could have been introduced and examined by the plaintiff's counsel. Presumptively, all persons will tell the truth when sworn to do so, but we know from experience that it is frequently unwise to call as a witness one who, for any good reason, is likely to be biased or prejudiced in favor of the opposite side. Every lawyer who has had much practice in the courts is well aware of this, and generally declines, unless compelled by circumstances so to do, to call a witness whom he has reason to believe is hostile to this client or friendly to the latter's adversary. Theoretically, one party may be under as much obligation as the other to introduce a witness who was present at a transaction or occurrence in dispute and failure to do so may be said to cut as hard against the one as the other, or that it should not cut against either, when the witness is in court and ready to be examined; but in spite of all the reasoning and refining which may be had on this subject, and notwithstanding intimations and expressions to the contrary by learned judges, the great fact remains that a large number of witnesses are, for various reasons, more or less biased, and it certainly is true that a party may with more safety introduce a friendly witness than one who is otherwise,--not, necessarily, from a desire to have perjury committed in his favor by the former, or from a fear that it will be committed against him by the latter, but because, as everybody knows, there is much in the manner in which a witness testifies, a great deal often depending upon his emphasis, upon the clearness or uncertainty of his recollection, upon his animus, and upon a hundred other things which cannot well be described, but can readily be imagined, all of which, without bringing him into the attitude of swearing falsely, affect and qualify the force of what he says. The above-mentioned theoretical rule is therefore too broad for universal...