Conn v. Seaboard Air Line Railway Co.

201 N.C. 157

• Court: Supreme Court of North Carolina
• Decided: June 27, 1931
• Status: Published

Opinions

BeogdeN, J.

The record shows the following: During the argument of one of the counsel for plaintiff to the jury, he made the following statement:

“The law in North Carolina says that all Mr. Conn had to do when he approached the track was to stop, if the circumstances were such that an ordinarily prudent man would stop, look and listen, and then go ahead as he did in this case.” “The North Carolina Supreme Court in the case of Kimbrough v. R. R., 180 N. C., 274, and decided in the year 1920, turned the defendant’s theory down flat. I want to read here what Judge Ciarle said about the law. Judge Ciarle was a great Chief Juslice of the Supreme Court and one who upheld the liberties of the people.”

Objection by defendant to plaintiff’s attorney reading from the opinion of Judge Ciarle. The court then charged the jury: “The jury will take the law from the court and not from counsel.”

Counsel for defendant: “We note an exception to the reading of the dissenting opinion of Judge Ciarle."

Objection by defendant; overruled; defendant excepts.

“Talking about going out upon the track, he said: ‘Gessler placed his hat upon a pole and compelled the public to pay obeisance to it. But neither, of these are more repugnant to our sense of propriety and right than to require tbe people traveling their own roads to come to a full stop at the sight of two parallel bars of iron laid across a public highway, simply because the railroads, while saving themselves the expense of avoiding grade crossings, are unwilling to take the trouble or responsibility to give proper signals or to establish gates and custodians whenever needed.’ ” This is Judge Ciarle’s language on it. I don’t care how much the attorney for the railroad objects to it. It is my opinion that the Supreme Court of North Carolina in the case of Moseley v. R. R., 197 N. C., 628, has backed Judge Clark up in his statement that it is not your duty to stretch your necks and bow to two iron rails. That is what you say the law is,” etc.

The foregoing excerpt from the record presents for decision this question of law:

In arguing a case to the jury, is it permissible for an attorney to read to the jury a dissenting opinion of one of the Justices of the Supreme Court of North Carolina?

Doubtless, it should be observed at the outset that a general dissertation or essay upon dissenting opinions is not pertinent to a solution of the question of law involved in this appeal. Suffice it to say that such opinions constitute valuable and helpful interpretation of the law as expounded or present in clear relief the divergent paths of legalistic thought upon a given subject. Moreover, at times, they may serve to demonstrate that courts and judges do not always fall into the goosestep of outworn precedent.

Prior to 27 December, 1844, an attorney was not permitted to argue law to a jury. In S. v. Miller, 75 N. C., 73, Justice Reade said: “Some twenty-five years ago a circuit judge restrained a lawyer from arguing the law to the jury, suggesting that the argument of law ought to be addressed to the court, as the jury had to take the law from the court. Umbrage was taken at that, and the Legislature passed an act allowing counsel to argue both the law and the facts to the jury.” The act referred to is chapter 13, Public Laws of 1844, and is now embodied in C. S., 203, which provides that “in jury trials the whole case as well of law as of fact may be argued to the jury.” This declaration is broad and comprehensive and easily lent itself to a construction by the profession that the field of a jury argument was unlimited and boundless. Hence, in the course of time, it became necessary for courts to fence in the field by imposing certain restrictions upon counsel in presenting causes to the jury. These restrictions are reflected in certain legal inhibitions imposed by the courts. These inhibitions may be grouped and classified as follows:

1. Attorneys are not permitted, except in certain specific instances, to read medical books or writings of a scientific nature to the jury. Melvin v. Easley,, 46 N. C., 386; Huffman v. Click, 77 N. C., 55; S. v. Rogers, 112 N. C., 874; Butler v. R. R., 130 N. C., 16; Lynch v. Mfg. Co., 167 N. C., 98; Tilghman v. R. R., 171 N. C., 652. Nor can counsel read a paper-writing not in evidence for the purpose of impeachment. S. v-. Bryan, 89 N. C., 531. The theory which excludes the reading o'f such publications, is based upon the idea that declarations in a book or opinions of experts contained therein, are not under oath, and hence cannot be classified as evidence. The exception to the general rule is pointed out in the Tilghman case, supra, in these words: “When an expert has given an opinion and cited a treatise as his authority, the book cited may be offered in evidence by the adverse party as impeaching testimony. But unless the book is referred to on cross-examination it cannot be used for this purpose. It would be a mere evasion of the general rule under discussion if counsel were allowed on cross-examination to read to the witness portions of such works, and to ask if he concurred in or differed from the opinion there expressed; hence this is not allowed.”

2. The second class of restrictions may be denominated as unfair comment and is discussed in many decisions, notably: Jenkins v. Ore Co., 65 N. C., 563; S. v. Williams, 65 N. C., 505; Coble v. Coble, 79 N. C., 589; S. v. Davenport, 156 N. C., 596; S. v. Tucker, 190 N. C., 708; Lamborn v. Hollingsworth, 195 N. C., 350; S. v. Green, 197 N. C., 624; S. v. Beal, 199 N. C., 278. These illustrations of unfair comment, beginning with the familiar “poor widow and rich corporation” argument, running through the “Pennsylvania Yankee” appeal, including the famous upas tree declaration and ending with the religious and social theories referred to in the Beal case, all stand as a lasting monument to vituperative ingenuity. The climax of unfair comment in the literature of the law of this State was reached in the argument of counsel and the charge of the court in S. v. Brown, 67 N. C., 435.

The third class of inhibitions denies to counsel the right to read the decisions of the Supreme Court of North Carolina where such reading would reasonably tend to prejudice either party upon the facts. S. v. Corpening, 157 N. C., 621; Forbes v. Harrison, 181 N. C., 461; Elliott v. Power Co., 190 N. C., 62. Thus, in the Gorpening case, the Court said: “As we understand the record, the counsel for the prosecution read the facts in Malonee’s case, relied upon as supporting evidence to the prosecutrix, and over defendant’s objection was allowed by the court to say in effect that a jury of Jackson County had convicted Malonee, and the supporting evidence was much stronger “than in Mailome’s case,” etc. A new trial was awarded because the trial judge permitted such argument to be made. In the Forbes case counsel attempted to read a portion of the opinion in Bell v. Harrison, 179 N. C., 190, and upon objection by counsel for defendant tbe court declined to permit sucb reading, and tbis ruling was upheld. Tbe Court observed “that two cases grew out of said administration and there was grave danger of prejudicing tbe defendants upon tbe facts as counsel was allowed to read tbe part of tbe opinion in tbe case proposed to be read by him.”

4. Tbe fourth class of restrictions denies to counsel tbe right to comment upon extraneous matters upon which there is no evidence. McLamb, Admr., v. R. R., 122 N. C., 862; Hopkins v. Hopkins, 132 N. C., 25; S. v. Love, 187 N. C., 32.

5. Tbe fifth class of restrictions excludes personal experience of counsel as part of tbe argument. Perry v. R. R., 128 N. C., 471.

Tbe courts of other jurisdictions have considered tbe question as to what may be read to a jury by counsel in tbe course of argument.

6. Tbe Court of Appeals of New York granted a new trial in tbe case of Williams v. Brooklyn Elevated R. R. Co., 26 N. E., 1048, because counsel, in tbe course of tbe argument, was permitted, over objection, to read to tbe jury an article appearing in tbe New York Tribune, entitled “Only a Boy Peddler.” Tbe article purported to be an account of tbe death of a little boy who was selling collar buttons and combs to help support bis mother and eight brothers and sisters, and bis death was caused by contact with a live wire swinging from a pole. Tbe Court said: “Tbe reading by counsel in summing up to tbe jury of tbe newspaper article ‘Only a Boy Peddler’ was wholly irrelevant to tbe case. It could have been read for no purpose except to inflame tbe jury against corporations, and to lead them, under tbe influence of a just anger excited by tbe incident narrated, to give liberal damages to tbe plaintiff in tbe case on trial. Tbe refusal of tbe court to interfere, under tbe circumstances of tbis case, was legal error. Tbe privilege of counsel, and tbe largest liberality in construing it, did not authorize sucb a totally irrevelant and prejudicial proceeding.”

Again in People v. Fielding, 53 N. E., 497, tbe defendant was indicted for auditing a fraudulent claim against tbe city of Brooklyn. Tbe District Attorney, in tbe course of bis argument, referring to taxpayers, said: “I say you will see old men in that line clutching in their knotted fingers rolls of dirty one-dollar bills. Look at their worn and shabby garments. Look at tbe marks of painful labor written all over their aged and clumsy limbs. It is tbe money of these people which tbe defendant has stolen and squandered. These are tbe people whose cause I plead. These are tbe victims of tbe defendant’s crime. These are tbe people who now, by tens of thousands, are waiting outside for your verdict. 'Will you do them justice, or will you not? If you shall let tbis man, loaded with bis guilty plunder, escape, then I say you have committed tbe unpardonable sin.” Tbe court, in charging tbe jury, said: “Some things have been said about the newspapers, about popular clamor, and about the burden of the taxpayers. Those are considerations which are not to control or influence you in deciding this case.” The Court awarded a new trial, and in the course of the opinion it is said: “Even in a civil action, when counsel are permitted, under objection and exception, while summing up, to read to the jury an abstract from a pamphlet or newspaper, or to exhibit a cartoon, not in evidence, it is good ground for reversal. . . . So statements made by counsel, outside of the evidence, and subject to objection, which strongly tend to arouse sympathy, prejudice, or resentment in the minds of the jury, require a new trial, even if the court charges that they have nothing to do with the ease, and must be disregarded.” See, also, Scripps v. Reilly, 38 Mich., 10.

7. Eulogies of deceased in suit for wrongful death. Dixon v. Haynes, 262 Pac., 119. The Court of Washington said: “The misconduct of counsel complained of consists of an attempt by one of the counsel for respondent to read something to the jury which had not been introduced in evidence, appearing to be a eulogy of deceased, or something of the kind. Upon objection, the court refused to allow counsel to read it, and counsel for respondent was peremptorily directed to refrain from making any reference to any document not in evidence. Although counsel for respondent should not have attempted to read anything to the jury which had not been introduced in evidence on the trial, the court fully protected the rights of appellants, so that no prejudicial error occurred.”

8. Counsel are not permitted to read to the jury, as law, decisions which are inapplicable to the facts, or which do not declare the law as held by the jurisdiction in which the trial occurs. This principle was announced by the Supreme Court of South Carolina in Key v. Carolina & N. W. Ry. Co., 147 S. E., 625. The Court said: “It appears from the record that the presiding judge permitted appellant’s counsel to read the entire decision of the United States Supreme Court in the Goodman casa to the jury in the trial of the case at bar, but that the court refused to' charge the law of that case, and on motion for a new trial failed to grant the same because the jury had disregarded the principles announced in the Goodman case. . . . Lately, it has been cited often by counsel for railroad companies in this Court, and it has received considerable attention in dissenting opinions. A majority of the Court has never indorsed the views of that case. The only mistake made by the presiding judge in this connection was in permitting counsel for the appellant to read the decision in the Goodman case to the jury.” Union Pac. R. R. Co. v. Field, 137 Fed., 14; Ray v. Chesapeake & Ohio R. R. Co., 50 S. E., 413; Farnandis v. Great Northern R. R. Co., 84 Pac., 18.

Tbis Court expresses no approval or disapproval of tbe various principles announced in other jurisdictions upon tbe subject, but sucb decisions are referred to in order to demonstrate tbe trend of judicial thinking. Tbe range of a jury argument is carefully and correctly set forth by McIntosh North Carolina Practice and Procedure, sec. 569, et seq. Summarizing tbe principles of legitimate argument by counsel, tbe author says: “But be may refer to well-known facts in history, literature, and science by way of illustration and ornament. He may argue matters of common knowledge, or matters of which tbe court will take judicial notice; and within tbe limits of tbe evidence tbe manner of presenting tbe case is left to bis own judgment. He may indulge in impassioned bursts of oratory, or what be may consider oratory, so long as be introduces no facts not disclosed by tbe evidence. It is not impassioned oratory which tbe law condemns and discredits in tbe advocate, but tbe introduction of facts not disclosed by tbe evidence. It has been held that be may even shed tears during bis argument, tbe only limitation on tbis right being that they must not be indulged in to sirch excess as to impede or delay tbe business of tbe court.”

Applying tbe principles deduced from tbe authorities, it is clear that a dissenting opinion is not admissible in evidence, and hence cannot be classified as a fact. Neither is it tbe law of tbe particular case, else it would not be a dissenting opinion. Manifestly, a dissenting opinion expresses tbe individual view of tbe judge who writes it, and thus would logically fall into tbe classification of newspaper editorials, magazine articles, pamphlets, or other writings, which have not received the' judicial sanction of a court. Therefore, tbe Court concludes that it is not permissible, upon objection duly made and entered, for an attorney to read as tbe law of tbe case a dissenting opinion of one or more of tbe Justices of tbe Supreme Court.

A perusal of tbe record discloses, beyond a doubt, that tbe dissenting opinion in tbe Kimbrough case was read to tbe jury as a correct statement of tbe law. Tbe trial judge, upon objection, made a general observation to tbe jury, but tbis was not sufficient. It was bis duty, upon objection duly made, either to direct counsel to refrain from sucb reading or instruct the jury plainly and unequivocally that tbe dissenting opinion bad no legal bearing upon tbe case.

New trial.