Cleveland, Painesville & Eastern Railroad v. Pritschau

1 Ohio Law Rep. 893, 69 Ohio St. (N.S.) 438

• Court: Ohio Supreme Court
• Decided: January 19, 1904
• Status: Published

Opinion

The record before us contains the solemn assurance that the repeated and prolonged scenes of disorder which it describes, occurred upon “the trial of this cause.” Adopting the euphemism, the trial was made to last through more than two weeks, obviously to the waste of most of the time so employed, and to the great discredit of the administration of justice. But these evils are accomplished and irremediable; and we have .only to determine whether the law requires the plaintiff in error to submit to a result so reached. The determination of that question will not only justify, but require some observations which might seem too obvious to be entitled to a place in a treatise on the conduct of trials. It is the requirement of the law that issues of fact, in so far as they depend on oral testimony, shall be determined upon the testimony of witnesses who speak under the obligations of an oath, and who are subject to cross-examination. It is also required by established general rules, to which the issues of this case present no exceptions, that statements of fact, to influence the verdicts of juries, must be from the personal knowledge of the witnesses, and that mere hearsay and inference must be excluded. .All of these requirements were disregarded in numerous instances presented by the record. On the trial counsel for the prevailing party, during that portion of the trial which, in orderly inquiry, is devoted to the introduction of evidence, made statements purporting to present facts, some of the statements being in corroboration of the testimony of witnesses, some of them being of matters which were not otherwise suggested in the ease. The instances in which statements of facts were followed by questions, not for the purpose of eliciting such facts as were in the knowledge of the witnesses, but to mislead the jury as to the facts in evidence, are subject to the same criticism.

The order of trial prescribed by Section 5190, Revised Statutes, does not differ in any respect, which is here material, from that which had been pursued before the enactment of the statute. But since the General Assembly has thought the order of sufficient importance to be a proper subject for legislation, there is added reason for adhering to the order which it prescribes. The section definitely provides that counsel shall not be heard in argument until all the evidence has been introduced. Manifest disregard of this order of trial appears in some of the comments of counsel which were made during the introduction of evidence, and which are presented in the statement of the case, and in many others which are not included in the statement. Not only were these comments untimely, but some of them were of such character that they should not have been permitted at any time. Certainly there is, and must be, much latitude allowed to counsel in argument when the time for argument has arrived; but the- ridiculing of uneducated witnesses because of their ungrammatical speech, and the offer-img of insults to others without cause afforded in the case, should be forbidden as tending to the suppression of the truth. The repetition of incompetent inquiries, to which objection had been sustained, was for the obvious purpose of eliciting a repetition of the objection and to prejudice the case in the estimation of the jury. It should need no comment to show that the purpose which prompted such conduct called for its complete and immediate suppression.

It is suggested that the conduct of counsel was so grossly vio-lative of propriety and decorum that it probably had the effect to offend the jury and to secure for his client a smaller verdict than would otherwise have been returned. That suggestion should not be permitted to control our judgment. If it be assumed that the orderly administration of justice is not to be insisted upon, and that the truth may, by accident, be evolved from such scenes as were here enacted, it is sufficient that the misconduct of counsel was, in its natural effect, prejudicial to the rights of the plaintiff in error, and it does not appear from the record that it did not, in fact, result in such prejudice. An examination of the cases cited, and others, justifies the conclusion that for such misconduct, and even for that which is less flagrant, judgments are always reversed, unless it is made to appear that its natural effect has been averted by court or counsel, or both. It is due to differences in the character of the misconduct rather than to differences of opinion in reviewing courts that it has, in some cases, been held that the effect of misconduct may be eliminated by instructions, and in others that it can not be. In this case the final instructions to the jury were silent upon the subject. Throughout the record a trial judge, personally distinguished for learning and probity, appears as a grieved observer of continued ■ improprieties which he thought himself powerless to suppress. It is entirely clear that he was unable to end them by admonition and entreaty, but he was clothed with ample power to suppress them inexorably. The county in which he sat has the complement of county buildings. From the body of the people’ a few are selected as members of the bar because their qualities are supposed to authorize the expectation that they will render important aid in the administration of justice. Some prime mistakes in the selection are remediable. If the court had sustained the motion for a new trial it would have been a too long deferred recognition of the rights of the plaintiff in error, though it would have made this proceeding in error unnecessary. That it should- have been sustained is obvious. But it is much more important to observe that the trial judge should not ¿ave permitted such conduct on the part of counsel as would result in a mistrial. This was due not only to the parties to the suit, but to the public. But few pages of this record had unfolded when there was a manifest occasion for continuing the cause and dealing with offending counsel according to his deserts. The observations of the trial judge, from time to time, show that he had an intelligent appreciation of the gravity'' of the offenses which were committed before him. "Why he thought it less important to suppress them than to give correct instructions to the jury as to the law of the ease, does not appear. In a comparison of causes, a mistrial because of an erroneous view of the legal rights of the parties would be entitled to more charitable consideration. The suggestion by the trial judge that a course of toleration was chosen because of the inveteracy of counsel’s habit acquired in forty years of similar practice, was most unfortunate. Is it necessary to say that there can be no prescriptive right to hinder the administration of justice by conduct which squanders time and leads to mistrials? Can the suggested discrimination against younger members of the bar be justified or even tolerated?

It is required by the reasons involved and by the decided cases that the judgments of the court of common pleas and the circuit court be reversed, and the cause remanded to the former court for a trial according to law.

Reversed.