219 S.W.2d 3 | Ky. Ct. App. | 1949
Affirming.
This is the second appeal in this case. At the first trial Margaret Drury, administratrix of the estate of her husband, William Drury, recovered a judgment from G. Cooksey Elliott for $10,000 for the death of her husband and $300 for damages to his automobile, all resulting from an automobile collision. The judgment was reversed for errors in the instructions. Elliott v. Drury's Adm'x,
The evidence on the two trials was substantially the same. The facts and circumstances surrounding the accident, as developed by the appellee, may be found in the opinion on the former appeal and will not be repeated here, but the substance of the testimony of Mr. and Mrs. Cornish will be given since it provided the background for the alleged improper argument.
Truman Cornish and his wife lived in Lexington and, with their four year old child, were on their way to visit his father in Anderson County on the day the accident happened. They traveled by bus from Lexington to Lawrenceburg, and upon arriving there Cornish saw William Drury and asked him if the Cornishes could ride with him to the country. Apparently Cornish's father and Drury lived in the same neighborhood. Drury consented, and they left Lawrenceburg with Mr. and Mrs. Drury and their two year old child in the front seat of the automobile and the Cornishes and their child in the rear seat. The Cornishes testified that Drury was drinking heavily, and was drunk at the time of the accident. They warned him several times about his reckless driving, and on one occasion Mrs. Drury protested and decedent said: "If you think you can drive any better than I can, get hold of the wheel." They testified that the decedent was driving rapidly on the wrong *816 side of the road when the collision with appellant's car occurred. Mrs. Drury contradicted their testimony in its entirety, and there was testimony by several disinterested witnesses which tended to show that Drury was not drunk. Truman Cornish was impeached to the extent that it was developed on his cross-examination that he had been convicted of a felony, chicken stealing, and had served a term in the state reformatory. Several witnesses testified that his reputation for veracity was bad.
In his argument to the jury, counsel for appellee, in discussing the testimony of Mr. and Mrs. Cornish, said:
"Now, then, I want to go back, briefly, to the testimony that has been engendered into this case in a desperate desire kind effort to show that this man Drury was at the time that his life was taken was drunk. It is very unfortunate, it is very unfortunate that we would have two people in our land like Truman Cornish and his wife, Mrs. Truman Cornish, and I say that advisedly. I have practiced law until my hair has come out to some extent, and maybe more than I would care to admit, and until I am gray, and many times I have stood before Anderson County Jurors, having been born and raised among you. I don't believe in all of my experience as a lawyer I have ever seen two people whose statements upon the witness stand were characteristic of more bitterness and feeling and prejudice and bias than these two people. A man may go to the bank, put a mask over his face and at the point of a gun can get the teller or cashier to deliver his money to him and get away. He has taken something and has got something for nothing. I don't believe that is as bad as the man or woman, who for gain, or for bias or prejudice, or for some other reason would deliberately in my opinion —"
At this point an objection was interposed. The court overruled the objection, but said to counsel for appellee: "Confine yourself to the testimony." Counsel for appellee then said:
"Gentlemen, I don't want to say anything here that is not in the record, but I want to be free and I think it is within my duties as an attorney to comment upon the testimony, the effect of testimony that has been given here on the witness stand, and as long as I keep within the bounds of law I think I am justified in *817 making any comments that the evidence will justify, but I do want to say this to you, you heard the ladylike statement of Mrs. Drury, the wife of William Drury, you heard the fair, intelligent statement made by Mrs. Robinson, you board the statement made by Mrs. Rutherford, all with reference to whether or not this young man, William Drury, on that occasion was drunk or drinking."
At the conclusion of the argument counsel for appellant moved the court to discharge the jury because of the statement of opposing counsel in his argument that Cornish, in his opinion, had testified for gain. Counsel for appellee stated that he had a right to explain to the jury the testimony of any witness showing it was not the truth, whereupon the court said:
"I am going to admonish the Jury not to consider the statement you made with reference to the fact that the Cornishes might have been testifying for gain in your opinion; I am overruling the motion to discharge the Jury."
Before the jury retired the court admonished it as follows:
"I want to admonish you before you retire not to consider the statement made by Mr. Draffen in his argument to the effect that either of the Cornish witnesses stood to gain by the outcome of the trial. There was no evidence to that effect in the record, to support that statement in the record."
Stenographic notes of the argument of appellee's counsel were made and transcribed, and the argument in full appears in the record. Except for the use of the word "gain,' when discussing the testimony of the Cornishes, we fail to find that counsel departed from the record or made any improper or prejudicial statements or unwarranted deductions from the evidence. Great latitude must be allowed counsel in arguments, but they must adhere to the facts and may not make statements calculated to excite the passions of jurors. Strong v. Abner,
Judgment is affirmed. *819