Paulsen v. McAvoy Brewing Co.

220 Ill. App. 273, 1920 Ill. App. LEXIS 234

• Court: Appellate Court of Illinois
• Decided: December 22, 1920
• Docket: Gen. No. 25,525
• Status: Published

Opinion

Mr. Presiding Justice Taylor

delivered the opinion of the court.

It will be observed from the statement of the evidence that the questions whether the defendant was guilty of negligence or the plaintiff was guilty of contributory negligence, or whether both were negligent, were somewhat difficult to answer and required, on the part of the jury, a careful consideration of all the testimony of the various witnesses and a proper appreciation, of the law applicable thereto as set forth in the instructions given by the court, and in order that that might be accomplished and justice done to both parties, it especially behooved counsel for both sides to conduct the trial with a due regard to proper practice and a recognition of the importance of endeavoring according to the well-recognized rules of procedure to elicit the truth and present it to the jury fairly and without sinister reflections and innuendoes. The determination of the rights of the parties in such a case is a matter of very serious import to all concerned, and where the questions to be answered by the jury are difficult as in the instant case, it is especially essential that no ulterior influences such as may arise from inflammatory utterances of counsel shall be used and endanger an unprejudiced verdict of the jury.

When counsel for the plaintiff was making his closing argument to the jury, the following colloquy took place:

“It is a cardinal principle with a certain class of attorneys, that when they have no case they must abuse the plaintiff’s witnesses and his lawyer. Now, counsel has followed that out implicitly in this case. He has no case. There is no defense to this action. He knows it; I know it; you know it. So he conceived that it is his duty, in the interests of this brewery company, to come in here and compel this poor man Paulsen to sit here in the front seat—

“Mr. McFadden: Just a minute.

“Mr. Potter (continuing):—and endure—

“Mr. McFadden: I wish to object to the remarks of counsel, in • referring to this defendant as ‘this brewery company’ and ‘this poor plaintiff sitting here on this seat. ’

‘ ‘ The Court: Don’t make any inflammatory remarks to the jury.

“Mr. Potter: I am making none.

“Mr. McFadden: Just a minute. I wish, if the court please-—

“Mr. Potter: I want this taken ont of my time.

“Mr. McFadden: Yes, I wish, if the court please, to preserve an exception to the remarks and conduct of counsel before the jury.

“The Court: The exception will be allowed. Go ahead.

“Mr. Potter (continuing): It is a brewing company, isn’t it? I say that the'conduct of counsel representing this brewing company, in compelling this plaintiff to sit here on this front seat and listen to him, in his defenseless position, call him a liar and a perjurer, is shameful, absolutely shameful.

“Mr. McFadden: Just a minute, please. I wish, if the court pleases, to object to the remarks of counsel to the jury.

“The Court: Note the objection.

“Mr. McFadden: I would like to preserve an exception to counsel’s remarks and to counsel’s argument to the jury.,

“The Court: Yes, go ahead.

“Mr. Potter (continuing): He'said he was a liar, didn’t he? He said he lied under oath, didn’t he? And the plaintiff had to sit here quietly, gritting his teeth and,listen to it, didn’t he? Counsel did a thing in this court room which he would not have the nerve to do, or the courage to attempt, outside of the court room.

“Mr. McFadden: I object to that.

“Mr. Potter (continuing): Do you think for a minute that Paulsen lied?

“Mr. McFadden: Just a minute, please, Mr. Potter, I wish again to say that I object to the argument of counsel to the jury. I object to the inflammatory remarks of counsel.

“The Court: Don’t make any inflammatory remarks to the jury. Confine yourself to the evidence in this case.

“Mr. Potter: I have a right to reply to the argument of counsel.

“Mr. McFadden: I wish to preserve an exception to the remarks of counsel, and to the conduct of counsel.

“The Court: Tes.

“Mr. Potter: Does the court hold that my remarks are inflammatory?

“The Court: Gro fhead. I am not passing on'that.

“Mr. Potter (continuing): No court would hold any such thing. In the absence of a meritorious case, in the absence of any possible defense to this action, counsel contents himself by getting up and stating that this plaintiff is a liar and a perjurer, because, forsooth, he said that he did not see the brewery wagon coming down the street behind another wagon, when counsel conceives it is to the interest of his client that he should have seen it. And this defendant, this brewing company, adds to the vice of running this man down unwarrantably in a public street, by employing, an attorney to come in here before twelve of his fellow citizens and say that he is a liar and a perjurer. I say that sort of thing is not warranted in any case, in any court room, and it is a dangerous thing for any lawyer to attempt. Now, further, in addition to calling him a liar and a perjurer—

“Mr. McFadden: .1 did not call him a liar.

“Mr. Potter (continuing):—he said he was a fakir— you said he lied.

“Mr. McFadden: He did.

“Mr. Potter: He did not lie; you know he did not lie.

“Mr. McFadden: I maintain that he did.

“The Court: Gro ahead with the argument, gentlemen. Proceed.

“Mr. Potter: And counsel now says that he lies, doesn’t he, and is a liar? I say that every defendant who employs such a lawyer ought to be adequately punished.

“Mr. McFadden: If the court please, I object to these inflammatory remarks. I am not on trial here. I wish the court to rule on them.

“The Court: The objection will be sustained.

“Mr. McFadden: I wish to preserve an exception to counsel’s remark, and counsel’s conduct and his attack upon me.

“The Court: The objection will be sustained on that.

“Mr; Potter: Now, I say that the conduct of any attorney—and I say it guardedly, coolly and without any passion, and without—

“The Court: Confine yourself to the case.

“Mr. Potter: I am arguing now as to the conduct of this case by the defendant’s attorney.

“The Court: Confine yourself to the evidence.

“Mr. Potter (continuing):—the conduct of any attorney, who not only says that plaintiff lies, but who takes occasion during the attempted defense of that plaintiff to repeat that statement to the jury, that conduct, I say, is reprehensible. Now, then, if the court please, in addition to saying the man lied upon the stand, counsel says that he is a fakir; that he attempts to exaggerate his injuries. He cites, as evidence of that, that his counsel would not allow him to stand down in front of this jury and permit a slick attorney with a Cheshire cat grin upon his face to put him through a' lot of paces.

“Mr. McFadden: Just a minute, I object to that, if the court please.

“The Court: I cannot remember what it was he said.

“Mr. McFadden: Will the reporter please read it?

“The Court: Well, go ahead, the exception will be allowed.

“Mr. McFadden: I desire also to preserve an exception to counsel’s remarks.

“The Court: Co ahead.

“Mr. Potter (continuing): Counsel would have had him stand up here; counsel would have stood this plaintiff up before this jury and would have attempted to get in front of him and have him go through with a lot of motions; he would thereby have attempted to cover this plaintiff’s case with ridicule. Now, this plaintiff has at no time claimed that he cannot bend his knee. He has at no time claimed that he cannot bend his ankle. You gentlemen have seen him walk about this court room. There has not been a single action of his which has been an attempt or was an attempt to impress this jury with the extent of his injuries. He has not said that he could not do work, but he has said that he could not do the work which he formerly did, which required him to be on his knees for a long time at a stretch; that he tried to do it for three weeks and found out that he could not do it. His doctor says that he cannot do it. He has told you the condition of his leg. You have an X-ray which shows the condition of his leg, establishes the condition of his leg. Counsel could have shown his leg to the jury if he had wanted to. He could have done that. It was entirely proper, and I was entirely within my rights and those of the plaintiff when I refused to .permit this attorney for this defendant to cast ridicule upon this plaintiff, by putting him through a lot of ridiculous motions before ting jury. I say that the claim of the defendant’s attorney that this claim is not made in good faith, that this plaintiff has not told the truth, or attempted to, that he is a perjurer, that he lied, that he is a fakir—those contentions are all of them absolutely unwarranted by this evidence. And I say that they arise, not out of anything that has occurred on this trial, but out of the desperation of this defendant’s attorney, and out of the fact that the defendant has no defense.”

In the course of that argument and colloquy, the trial judge twice admonished counsel for the plaintiff with the remark: “Don’t make any inflammatory remarks to the jury.” In one instance, when counsel for the defendant objected to the remarks of counsel for the plaintiff, the court announced that an exception would be allowed, and on another occasion, when counsel for the defendant objected to the remarks of counsel for the plaintiff, the court said: “Note the objection.” And, later on, when counsel for the defendant expressed a desire to preserve an exception to the remarks and the conduct of counsel for the plaintiff, the court said: “Yes.” Then .counsel for the plaintiff asked the trial judge if he held that the remarks of counsel for the plaintiff were inflammatory, in answer to which, the court said: “Go ahead, I am not passing- on that. ’ ’ Further, on one occasion, when counsel for the defendant asked the court to rule on the utterances of plaintiff’s counsel as inflammatory, the trial judge said: “The objection will be sustained.” Then, a moment later in the case, the trial judge twice told counsel for the plaintiff to confine himself to the case or to the evidence.

From the foregoing it will be seen that none of the inflammatory utterances of the plaintiff’s counsel were withdrawn from the record, and, although various objections were sustained, those rulings of the trial judge did not sensibly diminish the prejudicial effect of those utterances. The statement of counsel for the plaintiff in the course of his closing argument, “I say that every defendant who will employ such a lawyer ought to be adequately punished,” is an effort to persuade the jury to bring in a verdict in part based on the ground that the defendant should respond to the plaintiff in damages because it had employed the particular counsel that then represented it in court. The mere statement of those facts demonstrates not only the unreasonableness of the utterances but gives rise to the conclusion that the only effect it could have on the minds of the jury was obviously prejudicial to the defendant.

Further, the words of .counsel for the plaintiff, “Now I say that the conduct of any attorney—and I say it guardedly, coolly, without any passion, and without * * * the conduct of any attorney, who not only says that the plaintiff lies, but who takes occasion during the attempted defense of that plaintiff to repeat that statement to the jury, that conduct, I say, is reprehensible. Now, then, if the court please, in addition to saying the man lied upon the stand, counsel says that he is a fakir; that he attempts to exaggerate his injuries. He cites, as evidence of that, that his counsel would not allow him to stand down in front of this jury and permit a slick attorney with a Cheshire cat grin upon his face to put him through a lot of paces,” were not only unjustifiable, when the conduct of the defendant’s attorney is considered as the record shows it, but highly improper and must be considered as having been uttered with the intention of wrongfully influencing the jury to consider, in arriving at their verdict, the conduct of the defendant’s counsel. That whole statement was not only improper and misleading but tended to give rise in the minds of the jurors to notions and thoughts prejudicial to the just rights of the defendant. The language of counsel for the plaintiff, “There is no defense to this action. He knows it, I know it, you know it. So he conceived that it is his duty in the interest of this brewery company to come in here and compel this poor man Paulsen to sit here on the front seat—” was not proper. Williamson v. Hirsh, Stein & Co., 147 Ill. App. 500; Pierce v. L. Wolff Mfg. Co., 154 Ill. App. 660. Both Paulsen and the brewery company had rights, and counsel for the plaintiff was not entitled under the law to undertake to make any invidious distinction between them. Such a statement might easily have given rise in the minds of the jurors to an unwarranted prejudice against the defendant.

The law is well stated by the Supreme Court in Bishop v. Chicago Junction Ry. Co., 289 Ill. 63, in which case a judgment for $15,000, which had been affirmed by the Appellate Court, was reversed on account of the prejudicial remarks and conduct of counsel. The opinion in that case contains the following language:

“While it is true that at times, in closely contested cases, counsel may inadvertently say that which is prejudicial, the influence of such a statement may generally be overcome by sustaining objections thereto and by retraction on the part of offending counsel made in good faith, yet where it would appear, as it does here by frequent instances, that counsel has in the presence of the jury indulged in acts and statements prejudicial to the rights of the opposite party, and which tend to indicate that he was seeking what might be gained from such prejudice of the jury, such misconduct will amount to a mistrial of the cause, unless it can be seen that it did not result in injury to the plaintiff in error. We cannot so hold here. The evidence was conflicting and the verdict returned was for a large sum. While it is unfortunate that this case must be reversed for these reasons, yet it is a misfortune visited upon defendant in error by his own attorney. When intelligent counsel persists in conduct which he knows may result in setting aside the verdict of the jury if he secure one, he is thereby deliberately taking chances with his client’s rights. As was said in Bale v. Chicago Junction Ry. Co., 259 Ill. 476, where prejudicial remarks were made, objected to and objection sustained: ‘This kind of argument cannot be justified, and if wilfully persisted in will justify the reversal of a judgment, even though the court has sustained objections to it. It is,, of itself, sufficient reason for granting a new trial. ’ ”

In Illinois Cent. R. Co. v. Seitz, 111 Ill. App. 242, the court said:

“There is enough natural and inherent prejudice in the minds of jurors against railroads and other corporations without having it augmented by direct and improper appeals calculated to arouse the sympathy, passion or prejudice of jurors.”

In Eilers v. Peoria Ry. Co., 200 Ill. App. 487, the court said:

“The whole purpose of the law to obtain a trial by fair and impartial jury is defeated if appeals to their passions and prejudices are to be permitted during the course of the trial.” Bale v. Chicago Junction. Ry. Co., 269 Ill. 476; McCoy v. Chicago & A. R. Co., 268 Ill. 244; Chicago & A. R. Co. v. Scott, 232 Ill. 419.

The argument made by counsel for the defendant to the jury was fair and temperate. He challenged the credibility of the plaintiff, but that he had a right to do. Chicago & A. R. Co. v. Scott, 232 Ill. 419. On the other hand, we are of the opinion that a number of the utterances of counsel for the plaintiff were extreme and-beyond the limits of fair argument and tended to arouse the prejudice and passions of the jury.

As. to the contention of counsel for the defendant that the verdict and judgment were against the clear and manifest weight of the evidence, we are of the opinion that, quite obviously, there was ample proof on the part of the plaintiff to justify its submission to the jury and, further, to support a verdict for the plaintiff; and, as to the contention that the verdict and judgment were excessive, we are of the opinion that that claim is untenable Believing as we do, therefore, that the defendant did not have a fair trial, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

O’Connor and Thomson, JJ., concur.