White's Market & Grocery Co. v. John
| Decision Date | 22 April 1929 |
| Docket Number | 27869 |
| Citation | 121 So. 825,153 Miss. 860 |
| Parties | WHITE'S MARKET & GROCERY CO. et al. v. JOHN. [*] |
| Court | Mississippi Supreme Court |
TRIAL. Argument referring to excluded testimony, and stating attorneys for defendants did not want jury to hear it constituted reversible error.
Where in action to recover damages for personal injuries sustained in collision between automobile and truck, objection to testimony of witness as to statement made by defendant in-reference to accident was sustained after being heard by the court out of jury's presence, argument of attorney for plaintiff, to effect that statement made to such witness would shed light on controversy and that attorneys for defendants did not want the jury to hear it, held to constitute reversible error, particularly since argument was repeated in substance after court had instructed jury to disregard it on objection thereto.
APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.
Suit by Albert John, by his father as next friend, against the White's Market & Grocery Company, W. B. Freeman, and another. Judgment for plaintiff against defendants named, and such defendants appeal. Reversed and remanded.
Judgment reversed and cause remanded.
Amis, Dunn & Snow, for appellants.
The argument indulged in by counsel representing the plaintiff was of highly prejudicial and improper nature. The jury was told that McWilliams had testified in their absence to a statement made by Freeman, one of the defendants; that the statement which McWilliams had testified about would have shed light upon the controversy which attorneys representing the plaintiff wanted the jury to hear; and which the attorneys representing the defendants did not allow the jury to hear. In effect, that this testimony was favorable to the plaintiffs, and they wanted the jury to hear it and same was detrimental to the defendant's case; that the testimony which McWilliams gave out of the presence of the jury was as to a statement made by one of the defendants immediately after the accident and that the defendant had then made a statement which would have hurt the defendants' case before the jury. When the court made an effort to neutralize the effect of this argument by instructing counsel to desist in his efforts to get before the jury testimony which the court had already held incompetent, counsel with great tenacity and determination disregarded the authority of the court and restated his theory to the jury saying: "The court says I cannot argue to you about the testimony which McWilliams gave out of your hearing, but you know you did not hear it because the defendants did not want you to hear it."
The effect of counsel's latter remarks was to say to the jury the court may tell you to not regard what I have just said above, but I recognize that you men are human beings and I recognize that when you get into the jury room you can consider any facts you may desire, notwithstanding the court's instructions, and when you get in there you will think about the witness McWilliams when he was on the witness stand, and you will think about his knowing some facts which you did not hear and which the plaintiff wanted you to hear, and which the defendants did not want you to hear. We are sure counsel's misconduct resulted from the heat of argument and not from a desire to disregard the court's instructions, but nevertheless the fact is that counsel in his argument introduced prejudicial error into the trial, and the defendants certainly were not responsible for the error and should not be called on to pay a judgment on a verdict rendered in a trial where such conduct took place. See Perkins v. Guy, 55 Miss. 183; Newman Lbr. Co. v. Morris, 130 Miss. 751, 94 So. 881; N. O. & N.E. Ry. Co. v. Jackson, 142 Miss. 146, 105 So. 774.
Reily & Parker, for appellee.
We have here a record showing that one of the defendants denied making certain statements and both of the appellants' witnesses disclaimed any recollection of other statements. Both of the witnesses offered by the appellee were questioned about the statement which the defendant Freeman had denied making, and counsel in their special bill of exceptions state that during the argument the attorney for the appellee stated that the defendant Freeman had made some statement to the witness McWilliams at the scene of the accident and immediately thereafter "which had some bearing on and shed some light upon the occurrence and which statements the defendants did not want the jury to hear, and that therefore it was detrimental to their defense;" that objection was made to this line of argument and that the court sustained the objection and instructed the jury to disregard the same and admonished counsel for plaintiff to desist from such argument and that after being so admonished, counsel for plaintiff continued by saying to the jury: "The court says I cannot argue to you about the testimony which McWilliams gave out of your hearing, but you know you did not hear it because the defendant did not want you to hear it." It is always difficult to remember with exactness just what is said in the course of the argument and we have no recollection of this matter having been called to our attention except by the objection made at the time of the argument. There was certainly no disposition or intention to disregard the court's instructions regardless of the correctness of the court's ruling in the exclusion of the testimony offered. It was the understanding of counsel that the time the argument was being made that objection was being made not to the fact that appellants were unwilling for the testimony to be heard, but to the fact that argument was being made concerning the substance of such statement, and when the objection was made and so understood by counsel, ...
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