Appel v. Chicago City Railway Co.

102 N.E. 1021, 259 Ill. 561

• Court: Illinois Supreme Court
• Decided: October 28, 1913
• Status: Published

Opinions

Mr. Justice Dunn

delivered the opinion of the court:

A writ of c-ertiorari was awarded to bring up the record of the Appellate Court for the First District, which affirmed a judgment for $10,000 recovered by the defendant in error against the plaintiff in error in the circuit court of Cook county.

Error has been assigned upon the giving of two instructions, but we do not regard the objections to them of substantial importance. The only other ground of complaint urged is the refusal of the court to grant a new trial because of improper conduct of the plaintiff’s attorneys in the argument of the case to the jury.

The action was for personal injuries received by the plaintiff by being struck and run over by a cable train on State street, in the city of Chicago. The plaintiff was at the time about eleven years old and was in company with two other boys six and seven years old, respectively. The plaintiff’s account of the occurrence is, that the three boys were going east on the south side of Twenty-fifth street on the way from the plaintiff’s home, west of State street, to the lake, about half after five in the evening, to go swimming; that as they came to State street two- coal wagons were going west on the. south side of Twenty-fifth street, crossing State street, which prevented them from seeing the cable train, which was approaching at a fast rate of speed from the north without sounding the gong, and that just as the last wagon cleared the track the train appeared, rushing south. The two younger boys, who were in front, got over the track safely, but the plaintiff was struck by the south-east corner of the car, knocked down and run over, and one of his legs was so crushed that it had to be amputated a few inches above the knee. This statement is amply sustained by numerous witnesses produced on behalf of the plaintiff. On the other hand, an almost equal number of witnesses produced on behalf of the defendant by their testimony amply sustain the claim of the defendant that the accident did not occur at the crossing of Twenty-fifth and State streets but in the middle of the block between Twenty-fifth and Twenty-sixth streets; that the plaintiff, with a bundle of newspapers under his arm, had jumped upon a north-bound car at Twenty-sixth street while it was in motion,—“flipped” the car,—and in the middle of the block had “flipped” off and run' around the rear end of the car toward the west and toward the south-bound track, where he ran into the front end of the train coming from the north and received his injuries. The date and the names of the parties are the only circumstances which identify the occurrence testified to by the two sets of witnesses as the same event. The sole question for determination was the question of fact as to which was the true account, and in the condition of the record the verdict of the jury is final if the case was fairly submitted to them.

The question whether the plaintiff had a bundle of newspapers under his arm was of some importance for its bearing on the probability that he was going to the lake, swimming. He testified that he was in the habit of delivering papers in the evening to customers of his father but was not delivering any on the evening of the accident. After some of the deféndant’s witnesses had testified that the plaintiff had newspapers under, his arm at the time of the accident the plaintiff’s father was called as a witness for him in rebuttal, and an effort was made to prove by him a list of the names of the customers to-whom papers were delivered at that time and where they were delivered by the plaintiff. The defendant’s objection to this evidence was sustained.

The defendant’s attorney, in his argument to the jury, referred to some of plaintiff’s witnesses as follows: “All these fellows are acquainted. Where do they come from? Joe LaMansky, Fritzie Schmidt, Fishman, Campbell? Every one 'you can trace right through. Who are the parties ? Do they converge ? Are they in different lines of business distant from one another? No. Interested or acquainted with one another? Yes.” He also said: “If this is a framed-up defense, * * * if this is framed up and concocted in my office or t,he City Railway office, why didn’t the other six see the papers ? * * * Eight witnesses who saw them and saw him flipping those cars, running toward the car, saw the papers,—every one of the eight. * * * It isn’t a question of sympathy; it is a question of evenhanded justice at your hands. * * * I am sorry for that boy’s losing his leg. I am sorry to see him tell such a story as this here. I am sorry to see boys come in. here and try to bolster up a thing when they give no reason of abandoning their usual evening occupation of having newspapers with them * * * and going off swimming at dinner time or supper time. But I am sorry for the boy losing his leg. But that has got nothing to do with the evidence in this case as to how the accident happened.”

In his closing argument the attorney for the plaintiff said: “The City Railroad Company has cut a boy’s leg off, and the boy is a young boy, and he wants fifteen or twenty thousand dollars for it. He claims they are negligent. He files a lawsuit against them and asks them for money. Think of it! You know the street car company are so in the habit of getting the nickels right along that it is a hard proposition for them to give some back some time, and this boy is asking for it. And they find out, mind you, they find out that this boy has a newspaper route, and they find out that he has been in the "habit of every evening, off and on, of delivering the papers down on Went-worth avenue and on LaSalle avenue, and through there, and we had the list of the customers right here, and Hussey was so fair he wouldn’t let you men see it.

Mr. Hussey: “I object to that statement. i

The court: “He wouldn’t let you see what?

Mr. Belasco: “That list of customers. He said he was so fair and he was so sorry for this man—this boy.

The court: “Mr. Belasco, the court ruled on that and the court ruled the evidence was incompetent, so you can’t make that sort of argument without reflecting on the court.

Mr. Belasco: “Well, I didn’t intend to do that.

The court: “The jury will disregard the remark.”

Again, in the course of the argument of the plaintiff’s attorney the following took place:

“Gentlemen, if this accident didn’t happen at Twenty-fifth street, then myself and Mr. Baker and the twelve witnesses that testified in this case ought to be over on the north side. I oughtn’t to practice law here any more. I haven’t any right, because if this case was framed up I framed it. I talked to these witnesses. I found some of them myself. Mr. Baker found some of them himself. We went out there and we canvassed the neighborhood up and down and around—■

Mr. Hussey: “Well, I object to that.. ■

Mr. Belasco : “That is the evidence.

The court: “Don’t go into that—as to what you did outside of the record.

Mr. Belasco: “No; all right.

The court: “The jury will disregard that.

Mr. Belasco: “But I say in this case,—-I am not saying about anything else, Mr. Hussey, I am saying in this case. We all ought to belong over there, probably, if we had our just deserts. But I am talking about this case. I am talking about this case, men. That is all. There is no two ways about it. Either I took these two little boys,—and, mind you, won’t you give me credit that if I trained these twelve witnesses to come in here and tell a damnable lie without any scintilla of evidence to base it on,—that is, they either saw this accident the way they say they saw it, or they didn’t see it,—don’t you give me credit if I got these twelve witnesses and brought them in my office and trained them, that I couldn’t do a better job. than I have, one witness saying one thing and one saying another. * * * There is your fine bunch of witnesses—witnesses that you are asking this jury to turn this boy loose penniless. You are asking this jury to turn this boy loose without a cent. Men, the boy has had three trials. He has grown from a boy to a lad. This woman that saw this accident was a girl and she is now a mother, and they still keep this boy out of justice. As I say in this case, men, don’t let them do it any more. Pay the boy for God’s sake. Men, don’t turn him loose any more. Two trials he has had. This is the third—

Mr. Hussey: “I object to that line of argument.

The court: “Yes.

Mr. Hussey: “ ‘Pay the boy for God’s sake.’

Mr. Belasco: “Yes. Well, don’t pay him for God’s sake. Pay him for the boy’s sake.

Mr. Hussey: “I object to that line of argument. It appeals to the sympathy of the jury.

The court: “Mr. Belasco, you must not make that sort of argument to the jury and you must direct your arguments to a logical examination of the facts in the case. And the jury must not be influenced by any appeals of that kind. They must stick right to the evidence and to the law, and to arguments of either counsel as are logical and based upon the evidence in the case.”

There can be no doubt of the impropriety of the argument which has been set out. It cannot be justified. It held the defendant up to the jury as making technical objections and thus unfairly procuring the court to exclude evidence which would have thrown light upon the issue. It added the weight of the character and standing of the counsel for the plaintiff to the credibility of his witnesses, and it appealed to the emotions and prejudice of the jury in favor of the injured and penniless boy against the defendant, which through three trials and years of delay has kept- him out of justice. The court promptly sustained the objections made to the argument, and no complaint is made of the action of the court in that regard.

Many cases have been cited in which courts have reversed judgments because of misconduct of counsel in the argument of the case and many cases in which they have declined to do so. We shall not undertake to review them. It is true that it is the action o-f the court, only, which is subject- to review in. appellate tribunals and that misconduct of counsel not objected to cannot be-made the ground of reversal. The improper argument or other misconduct complained of must be brought to the attention of the court and a ruling of the court either made or refused before the question can arise in an appellate tribunal. Where objections made to improper argument are sustained, counsel is corrected and the jury are instructed to disregard it, the improper argument cannot usually be made the basis of reversal. But upon a motion for a new trial the question still remains whether the defeated party, in view of the whole record, has had a fair trial, and this question is committed to the discn lion of the trial court,—not to its absolute discretion but to its judicial discretion. As was said in the case -of West Chicago Street Railroad Co. v. Annis, 165 Ill. 475, it is “a matter -resting in the sound discretion of the trial judge to say, under all the circumstances of the case and in view of the counter-remarks which may be made and the temper and character of the jury, whether a new trial should be granted or not, and unless it satisfactorily appears from the record that the trial court has abused its discretion in this regard, courts of review cannot interfere.” In a clear case, however, this court will reverse a judgment because of the improper conduct of counsel, and has reversed judgments because of prejudicial 'statements of counsel even though the trial court has sustained objections to such statements, rebuked counsel and directed the jury' to disregard the statements. (Wabash Railroad Co. v. Billings, 212 Ill. 37; Chicago Union Traction Co. v. Lauth, 216 id. 176.) The rule in this State must be regarded as settled that misconduct of counsel of the character mentioned is sufficient cause for reversing a judgment, unless it can be seen that it did not result in injury to the defeated party. The questions to be determined are, therefore, whether the improper argument was of such a character as was likely to prejudice the defendant, and if so, was the verdict so clearly right that a new trial ought not to be granted because of such prejudicial argument.

The case was manifestly not one-sided upon the evidence. There was abundant testimony to sustain a verdict for either party. The case depended absolutely upon the credibility of the witnesses. It was essential to a fair trial that the issue should be determined by an impartial jury, solely upoit the evidence in the case, without any appeal to passion or prejudice. The allusion to the list of customers which was excluded was an argument that the defendant’s attorney was unfair in keeping proper evidence out of the case. Whether the evidence was important or not, counsel gave it importance by his argument and sought to draw an unjust inference from the defendant’s objection to it. The allusion to the penniless condition of the boy, to the.three trials, the delay and the keeping of the boy out off. justice, were appeals to the sympathy of the jury which were not warranted by the evidence. This was the ■ third trial and the jury knew it, and there had been delay, but, so far as the record shows, the defendant was not responsible for it.. It cannot be "regarded as unfairly keeping a plaintiff out of justice for a defendant in good faith to resist his claim. Counsel for the defendant in error argue that it was not said that the boy was penniless but that upon such evidence the jury were asked to turn him loose penniless, without a cent, and that the statement was a comment on the character of the evidence. The language may be so understood and the defendant in error is entitled to the benefit of that construction, but this does not apply to the other statements in this part of the argument.

Whatever may be thought of those parts of the argument which have thus far been considered there can be only one view of the remaining part. The statements made in regard to the canvassing of the neighborhood for witnesses and finding them, if they could have been admissible at all, could have been so only under oath and as the testimony of witnesses, and those statements were eminently prejudicial. The vital question in the case was the credibility of the two sets of witnesses. Any inference to be drawn from the evidence in the case tending to sustain or impeach the witnesses on either side was a legitimate subject of argument, but counsel had no right to throw the weight of his and his associate’s character and standing into the scale in favor of the witnesses on his side. By his language he vouched personally for his witnesses. His words might well be understood as a personal declaration, of his own knowledge, that there was no conspiracy among the witnesses. He declared that he had canvassed the neighborhood, talked with the witnesses, and if the case was framed up he framed it, saying that if the accident did not happen at Twenty-fifth street he and his associate, and the twelve witnesses who testified to this case, ought to be over on the north side,—meaning, as the jury would understand, in the county jail. In a case depending upon the credibility of witnesses, what doubt can there be as to the prejudicial effect of such statements of counsel? It was said in Gutzman v. Clancy, 114 Wis. 589: “That solemn statements of fact, not by way of argument and deduction from the evidence but as of the counsel’s own knowledge, are likely to have weight with juries cannot be doubted. The respectability and standing of counsel only serve to enhance the peril. That such conduct necessitates reversal, unless absence of prejudice clearly appears, has been often decided.” Other cases in which statements by counsel of their personal actions or knowledge or experience have been held error for which judgment should be reversed, are Louisville and Nashville Railroad Co. v. Hull, 113 Ky. 561; Texas and New Orleans Railroad Co. v. Harrington, 44 Tex. Civ. App. 386; Smith v. Western Union Telegraph Co. 50 Mo. App. 620; Hilliker v. Farr, 149 Mich. 444.

Counsel for the defendant in error argue that these statements were fair discussion of facts brought out by the cross-examination of the defendant’s witnesses and in answer to the argument of counsel for the plaintiff in error in discussing the plaintiff’s witnesses and their production from a common source, in which he said: “All these fellows are acquainted. Where do they come from? Who are the parties? Do they converge?” It was proper argument for the plaintiff in error to discuss these questions, and it was proper for counsel for the defendant in error to answer them so far as such answer was found in the evidence, but it was not proper to answer them, in argument, from his own knowledge of facts not testified to under oath.

It is suggested that as no claim is made that the damages are excessive there was no prejudice to the defendant. The improper argument was not directed to the amount of the damages and did not concern their amount more than it concerned every other feature of the case. If the argument prejudiced the jury against the defendant, that prejudice was as likely to affect their judgment in regard to the defendant’s liability as in regard to the amount of the liability. If the argument affected the credibility of the witnesses it could not fail to affect the question of liability, regardless of amount.

The circuit court should have allowed the defendant’s motion for a new trial.

The judgments of the Appellate Court and the circuit court are reversed and the cause is remanded to the circuit court for' a new trial.

Reversed and remanded.