6 S.E.2d 903 | S.C. | 1940
January 24, 1940. The opinion of the Court was delivered by This action was brought by plaintiff to recover damages for injuries which she alleges she sustained when she fell upon the floor of the store room of the appellants, in which she was employed as a saleswoman. The case was tried by Judge T.S. Sease and a jury.
While Dr. Hugh Black, a witness for plaintiff, was being cross examined by Mr. Perrin, of counsel for defendants, he was asked:
"Q. It was after you put the cast on her? A. No, sir; I called him and told him we were going to put her in a cast, and he referred me to the First Mutual Insurance Agency.
"The Court: Wait a minute. How did that come out?
"Mr. Perrin: I would like to move that the Court withdraw the case from the jury. That answer was unsolicited and it was not in answer to any question. *385
"The Court: It is not the fault of the lawyer representing the plaintiff; it is not your fault, and not my fault. It is the fault of the witness. Motion overruled."
Motion for directed verdict was also overruled.
The case went on, and the jury found for the plaintiff actual damages. Motion for new trial was overruled. Defendants appeal on grounds set forth in twenty-one exceptions; these are grouped in counsel's brief in the form of six questions. We do not find it necessary to consider themseriatim.
The first question is: "Did the Judge err in refusing the motion for a mistrial?"
One of the grounds of the motion for new trial was that Dr. Black, plaintiff's witness, had interjected the matter of insurance into the case. In the order of the presiding Judge overruling the motion, he said: "The record will show that the statement was not brought out by the plaintiff's attorney. Indeed, during his direct examination, Dr. Black did not mention the words `insurance agent.' It was when he was on cross examination that the doctor volunteered the words, and they were not in response to the question Mr. Perrin had asked. * * *" The logical deduction from this utterance of the Court is that inasmuch as this inadmissible evidence was not adduced by any action on the part of plaintiff's attorney, he would not be justified in declaring a mistrial. We may say that it was not adduced by any action on the part of defendant's attorney; nevertheless, it was before the jury with all of its baleful effect. Since the utterance of this Court in the case of Horsford v.Carolina Glass Co.,
In the Horsford case that eminent jurist, Associate Justice C.A. Woods, later a member of the United States Circuit Court of Appeals, Fourth Circuit, said:
"But when testimony manifestly incompetent and prejudicial is adduced for the purpose of having such testimony influence the jury, the party who adduces it will not be allowed to hold his verdict and assert that the court can do nothing against the unfair advantage of having the statement before the jury, beyond striking it out and instructing the jury to disregard it. In such case it does not lie in the mouth of the offending party to say that, although he has brought in irrelevant and prejudicial testimony, the court cannot entirely deprive him of the benefit of it. It makes no difference that defendant's counsel did not move to strike out the testimony. Had the motion been made and granted, the plaintiff would still have had the unfair advantage of having testimony before the jury which he ought not to have offered. Justice can be satisfied only by the complete relief of a new trial. * * *
"The inevitable conclusion that a party should not be allowed to hold a verdict obtained under such circumstances is enforced and illustrated in many cases. With respect to testimony as to employer's insurance, the Supreme Court of Mississippi said, in Herrin v. Daly,
The respondent and the Circuit Judge hold that the case of Vollington v. Southern Paving Const. Co.,
In the present case the objectionable reference to insurance was introduced by plaintiff's superserviceable witness — a most intelligent witness; one who, it is safe to say, because of his medical and surgical knowledge and practice, and his connection with a large hospital, and his frequent attendance upon Courts as a witness in damage suit cases, had some idea of the import of the evidence he volunteered. But be that as it may, the plaintiff got the benefit of this objectionable evidence offered by her own witness. Counsel promptly moved for the ordering of a mistrial. We can conceive of no more effective way of asking that the whole matter be struck from the record. It was error not to grant that motion.
We find no merit in the exceptions which charge error to the presiding Judge for refusing defendants' motion for a directed verdict in the matter of punitive damages. The Court said, when the motion was made: "I am going to submit both questions to the jury. If I don't like the punitive damages, I will cut it off."
We are not much in sympathy with this manner of treating such a motion; we think the movant is entitled to have his motion acted upon before the case goes to the jury. However, in this case the question has become *388 an academic one, since the jury found only actual damages. This Court has repeatedly held that in such case there is no ground for appeal.
Appellants' twelfth exception charges error in that the Circuit Judge participated in the examination of the plaintiff while she was a witness. The record shows the following occurrence when the plaintiff was being cross examined with reference to the alleged depression in the floor:
"Q. How large was it? A. Large enough to get me hurt.
"Q. Was there anything to keep you from seeing it? A. Those tables were there.
"Q. Was there anything to keep you from seeing it? A. I wasn't looking for it; he was supposed to have it clear.
"Q. Did you see it? A. No, you know I didn't.
"The Court: Until you slipped? A. That is right."
No one who knows the able and experienced jurist who presided in this trial will entertain the remotest suggestion that he intentionally interjected his own view or thought into the case. It was plainly an inadvertence. Nevertheless, it was unfortunate that it was made. One who is familiar with the trial history of the Courts of this State will recall that before the War of 1860-65 the Judges could and did comment on the facts of a case. There grew up a strong sentiment against the practice, which culminated in a provision of the Constitution of 1868 which took from the Judges this privilege, and strictly inhibited it. It is true that the Constitution was the work of a Convention composed of people not native to the State, of renegade native whites and ignorant and illiterate colored people who had just been freed from slavery. But the Convention of 1895, composed of natives of the State, included in that instrument a similar provision in the following language: "Judges shall not charge juries in respect to matters of fact, but shall declare the law." Article 5, Section 26.
This is a provision of the Constitution or statutory law of a majority of the Federal States. Our Court has construed *389
it in the following language: "* * * This provision of the constitution has been construed in several cases by this court, and in State v. White,
In the case of Enlee v. Seaboard Air Line Ry.,
In an able and elaborate opinion by Circuit Judge W.C. Benet, Acting Associate Justice, in the case of Norris v.Clinkscales,
The above opinion was construing the provision of the Constitution of 1868, which was as follows: "Judges shall not charge juries in respect to matters of fact, but may statethe testimony, and declare the law." Article 4, § 26. The emphasized phrase is not in the provision of the Constitution of 1895, which reads: "Judges shall not charge juries in respect to matters of fact, but shall declare the law."
It is needless to cite other authorities. It is enough to say that it is the settled conclusion of this Court that the trial Judge may not intimate to the jury his opinion on any contested issue of fact in the case before him.
In the case before us a cardinal issue of fact is this: Was the depression in the floor, into which the plaintiff alleged she stepped and fell and thus injured her ankle, one which a person exercising ordinary care for her own safety could easily have seen? And, further, did plaintiff step into this alleged depression, or did she fall because of a weak ankle caused by a former accident? She was being pressed on cross examination to say whether she saw the alleged depression. Finally she said: "No, you know I didn't." It was then the Court asked: "Until you slipped?"
It seems to us that there was here an intimation of the opinion of the Court that there was a depression, that the plaintiff had slipped and that she saw the depression in the floor when she slipped and fell. Juries are quick to seize upon anything which falls from the bench, which indicates what the Judge thinks about it all. We think that this inadvertent remark by the Judge must have had its influence with the jury. The exception is sustained.
Exceptions 16, 17 and 18 relate to alleged errors of the Court in relation to the fact that the attorney for respondent read to the jury from a law book; that he presented the book to the foreman of the jury so that he could follow the attorney as he read, and this was *391 without the permission of the Court. This matter was one of the grounds of defendants' motion for new trial. In his Honor's order denying the motion for new trial, he said about this matter:
"In this connection, I had glanced over the requests to charge of the plaintiff, and when defendants' counsel called to my attention that plaintiff's counsel was reading from a book, I said:
"`I presume that Mr. Southard is reading from the requests to charge.'
"And when he said that he was I allowed him to proceed, and it was with my consent and permission, having glanced at the requests to charge and the authorities submitted thereunder, I knew it would be charged by me. The only thing that Mr. Southard read was a sentence from the fifth paragraph of Hopkins v. Southern Cotton Oil Co., 144 S.C. (395), 400 (
It appears to the Court that the presiding Judge permitted plaintiff's counsel to continue with the reading from the law book because he was under the impression that he was reading from the requests to charge.
It is against the announced rule of this Court for an attorney to read to the jury from a law book. Indeed, he may not read to this Court from a law book. The Court does not approve of the action of counsel in this case, but it does not appear from the statement of the trial Judge that the appellants were injured thereby, and for that reason alone the exceptions thereabout are not sustained.
Inasmuch as the case must go back to the Circuit Court, we refrain from passing upon the other exceptions, which relate mainly to alleged errors in the charge.
The judgment is reversed and the case is remanded for new trial. *392
MESSRS. JUSTICES CARTER, BAKER and FISHBURNE concur.
MR. CHIEF JUSTICE STABLER did not participate in the decision of this case.