Overing v. SkrmettaOvering v. Skrmetta
This was a suit by George T. Overing, Jr., against Marko and Anthony Skrmetta to recover damages for injuries resulting from an assault, alleged to have been made by Anthony Skrmetta while in the scope of his
Overing and Marko Skrmetta, both of Biloxi, were the respective owners of different boats which were for hire to patrons for pleasure and deep-sea fishing. The rivalry between the operators was keen. About May 28,1951, the plaintiff and Anthony Skrmetta became involved in a controversy as they were soliciting prospective patrons. Overing, who was 55 years old and weighed about 170 pounds, received serious injuries. He died while this cause has been pending here, and there wаs a revivor in the name of Mrs. Lelia Amelia Overing, Administratrix of his estate.
The evidence for the plaintiff, which was fully corroborated by another witness, wаs to the effect that Anthony Skrmetta, about 28 years of age and weighing 220 pounds, made an unprovoked and cruel assault upon him, as a result of which he sustained the injuries. The serious nature thereof ivas established beyond question by competent medical authority.
On the contrary, on the merits, thе evidence for the defendants, consisting of six witnesses, most of whom were relatives, was to the effect that Overing was the aggressor; that Anthony aсted only in his necessary self defense, after being attacked by Overing with a knife; and that only such force was used as was reasonably necessаry to repel his adversary.
Consequently this sharply disputed issue of fact was for the jury, who, under our system, are the judges as to the credibility of the witnesses. Besides the issue as to whether or not Anthony Skrmetta was an agent of Marko Skrmetta was likewise in dispute, and its determination, therefore, was for the jury.
A thorough consideration of all of the evidence leads to the conclusion that the verdict was not against the
Appellant assigned and argued two other grounds on account of which he contends that he was entitled to a new trial, namely, (1) a statement of the trial judge during the argument of the case on its merits, and (2) the incompetency of Juror J. R. Wood, or his concealment of business relations with thb Skrmetta family.
In the argument to the jury, counsel for the plаintiff said, “that if this was not a case of liability the court would not have permitted it to be submitted to you.’”' No objection was made by the defendants, but the Judge forthwith said, “that is not true, the question of liability is submitted on instructions given to the jury and it is for the jury to pass on.” Whereupon counsel said, “I withdraw the statement. The matter of liability, damages and all other matters are submitted for your determination. ’ ’
It is contended that the voluntary statement, in effect, meant that сounsel was misrepresenting the court’s action in the matter, and, owing to the high esteem in which judges are held, this statement was highly prejudicial and likely caused the jury to consider the plaintiff’s case as a fraudulent attempt to extort money from the defendants.
The force of this argument cannot be tossed aside lightly. A good and popular circuit judge enjoys the confidence and esteem of most people in his district. He holds аn honorable position and it is doubtful if any other officer rates above him in popular confidence and esteem.
However, in Brush v. Laurendine,
Counsel’s argument was erroneous. If it had been objected to, assuredly the judge should and would have sustained the objection. Again in Brush v. Lauren-dine, supra, it was said that “ordinarily, however, the judge is entitled to the reasonable aid of counsel in this matter * * That is, opposite counsel should object to improper argument. But since the argument here was directed solely at what the judge had done, opposite counsel could, with reason, anticipate that the judge would take care of himself. In Pullman v. Lawrenсe,
We do not think that the judge’s language, if it had been used in sustaining an objection to the argument, would have produced on the minds of the jurors the effect here сontended for by the appellant. Neither do we think that such language, used by the judge on his own motion, did so. Jurors, as a rule, are men of common sеnse, and are not wholly uncharitable toward counsel, who in the heat of a trial, may fall a victim to partisanship and overstep the bounds of proper argument.
As heretofore stated, the second complaint is in regard to the Juror Wood.
The voir dire examination does not аppear in the record. On the motion for a new trial, Wood was called as a witness by the appellant. He admitted that he was asked by counsel for plaintiff whether he had ever worked for the defendants or any member of their immediate family and his answer was, “I said I worked for Mrs. Skrmetta — Mrs. Skrmetta that lived on Oak Street, the old elderly lady — I wouldn’t know whether
Counsel for plaintiff testified that Wood never mentioned on his voir dire examination, that he knew Mrs. Skrmetta or that he had been working for аnybody by that name. He was under the impression that the juror was a resident.of Saucier and not of Biloxi; and if he had known of the work for Mrs. Skrmetta, he would nоt have accepted Wood as a juror.
In Berbette v. State,
Wherefore it follows that the judgment of the lower court ought to be, and is, affirmed.
Affirmed.