55 Mo. App. 626 | Mo. Ct. App. | 1894
This is an action to recover the penalty provided for in section 2725, Eevised Statutes, 1889, for the alleged failure to promptly transmit a telegraphic dispatch left with the defendant’s agent at Concordia, Missouri, at about six o’clock p. m., January 15, 1893. The message was directed to Elliott, at Marshall, Missouri, and, on account of some delay, was not received at Marshall until about nine o’clock on the morning of January 16, 1893. By reason of the absence of a direct wire from Concordia to Marshall, it seems to have been necessary to pass the message through the telegraph office at Lexington, Missouri. The defense relied on was, that the lines were so taxed with other telegraphic work that the operators were unable,
“1. The court instructs the jury that, if they believe from the evidence, that the defendant’s agents were unable to send the message in question to Marshal before the close of the office hours at that place on the evening of January 15, 1890, because of the fact that the wires were busy or engaged, then their finding must be for the defendant.
“2. The court instructs the jury that, if they believe that it was impossible to send the message on the evening of the day it was filed, by reason of the fact that the wires were busy, or engaged, their finding-must be for the defendant, although its agents may have failed to promptly send the message from Lexington to Marshall on the day following:
“3. The court instructs the jury that, if they believe from the evidence, that the defendant’s agents attempted in good faith and impartially to promptly send the plaintiff’s message, then, notwithstanding any failure, the finding must be for the defendant.”
After an oral argument, by Mr. Longan, attorney for plaintiff, and Mr. Yeater, for defendant, the jury gave a verdict for the plaintiff, and from a judgment thereon defendant has appealed.
The principal matter complained of in this appeal is the alleged improper conduct of plaintiff’s counsel in the discussion of the case before the jury. The bill of exceptions shows that Mr. Longan in making the closing argument to the jury, made use of the following words, and others of like import, as shown in the bill of exceptions which we copy, to-wit:
“ ‘ Uentlemen, lam a telegraph operator myself, and it is all nonsense to say that any office could not*629 be reached at any time in twenty minutes after it is called.’ And upon making said remarks in the course of the argument, defendant’s counsel momentarily interrupted plaintiff’s counsel, the said George E. Longan, and objected to such remarks, and to other remarks of a similar nature which had preceded them. The court at that time made no ruling, to which action of the court the defendant by its counsel then and there excepted at the time.
“Thereafter the said counsel for plaintiff, George F. Longan, resumed his argument, and very shortly thereafter he made use of the following language: £I have worked on this very Lexington branch line myself, not at Concordia, but at Hughesville, and I know that that line is never kept busy, and that it has two wires which are more than sufficient to attend to business on that line. I know that any office on that line can be called without any delay, and it is all nonsense to tell me that the operator could not get that message off without delay.’ And the said plaintiff’s counsel repeated said remarks, or words to that effect in his argument to the jury, and while plaintiff’s counsel, said George F. Longan, was continuing his argument, and immediately after the aforesaid objections the defendant’s counsel, Mr. Charles E. Yeater, at the time wrote at once the following words upon a sheet of legal cap paper, to-wit: ‘The defendant’s counsel asks the court to reprimand Mr. Longan, counsel for the plaintiff, for stating to the jury in argument: “Gentlemen, I am a telegraph operator myself and it is all nonsense to say that any office could not be raised at any time in twenty minutes after it is called,” and other similar statements, for the reason that his statement, as an expert, was not under oath.’
“And immediately after Mr. Longan concluded his argument defendant’s counsel handed the said writing,*630 setting forth the foregoing words, to the court, and in addition renewed his objections orally.
“And, thereupon, the court used about the following words to the jury: ‘You will not consider any statements made by Mr. Longan in his argument concerning his personal knowledge as an operator, for the reason that he was not a witness in the cause.’ To which action, of the court in not more severely reprimanding Mr. Longan, or in not then and there discharging the jury and continuing the cause, the defendant then and there excepted at the time. And the said writing handed to the court last aforesaid set forth was then ah there duly filed in the cause by defendant’s counsel.”
That plaintiff’s counsel in this case grossly transcended the line of legitimate argument cannot be questioned. Notwithstanding frequent criticisms — many of which I think unjust — the settlement of disputes by means of trials by jury may be regarded as superior to all other experiments, hedged about and guarded as such trials are under our laws and rules of practice. And whether disputed facts are to be settled by twelve men or one man, there is nothing at the trial so conducive to a just result, or of such potent aid to the human understanding, as the well directed argument of the lawyer, who brings into the court the results of an industrious, thoughtful consideration ■ of the case in all its bearings. But it is not the province of the lawyer in presenting by argument his client’s cause to manufacture evidence. The testimony must come from the sworn witnesses.
It was herein that plaintiff’s honored and reputable counsel was at serious fault when he indulged in the line of argument above quoted from; and it was the more serious and prejudicial to the' opposite side because of the well known standing of the lawyer that
Now, the further question is, whether or not the above remarks by the trial judge after the close of the argument cured the prejudice thus wrongly cast against the defense. Ordinarily, we think an instruction to this effect might be sufficient; but in so aggravated a case as this we hold that this mild statement from the court was not adequate or timely. As to what is proper, in cases of this nature, depends much upon the circumstances. Here was the trial of a question where there appeared a decided preponderance of direct testimony on defendant’s side of the issue. To overcome this, the plaintiff’s overzealous counsel threw into the scales the assertion of his own experience, and repeated and elaborated the same before the jury. Doubtless this was done inadvertently and during the heat of earnest argument — at least from our own knowledge of the
Where illegitimate argument is indulged in before a jury it is made the duty of opposing counsel promptly to object at the time of its utterance, so that the court may immediately correct the error by rebuking the offending lawyer and admonishing the jury not to be influenced by the objectionable matter; and the reports of this and the supreme court are full of cases where the offended and prejudiced party was not heard to complain because of a failure to thus promptly object at the time. Where now, as was the case here, the opposing counsel-does promptly make his objections to the unfair and improper argument — and that, too, in its very incipiency — was it not as well the duty of the trial judge as promptly to stop and reprimand the offending advocate and caution the jury not to be influenced by such prejudicial statements? In allowing Mr. Longan to proceed over defendant’s objection, and to restate and elaborate his experience in telegraphy, the court tacitly indorsed the propriety of such argument; which thereby, we have a right to assume, became so fixed that even the mild caution given by the court at the
The judgement will be reversed and the cause remanded for a new trial.