98 P.2d 114 | Kan. | 1940
The opinion of the court was delivered by
Plaintiff was awarded damages for personal injuries which she alleged were the result of eating part of an unwholesome sandwich served by the defendant company in a public eating place. Judgment was for $937, from which defendant appeals, and also from orders overruling motions for a new trial and for judgment notwithstanding the verdict.
Appellant contends: (1) that the verdict was procured by perjured and fraudulent testimony of the plaintiff and her doctor; (2) that the verdict was arrived at under the influence of passion and prejudice induced by improper and prejudicial statements made by plaintiff’s counsel in his argument to the jury; and (3) that the damages awarded were excessive.
Doctor Chipps testified that the plaintiff came to his office and said that she was very sick and thought she had been poisoned by some food, that he examined her and found her pulse and color normal and that her heart wasn’t exaggerated or weak, that' she tried two or three times to vomit but couldn’t vomit and that she didn’t look ill; that he gave her a dose of alkaline powder; that she was in his office about thirty minutes; that in his opinion she was not ill from food poisoning, and that she was not poisoned by anything she ate at noon, as food poisoning would not develop that quickly; that he later saw the ham sandwich which was represented to be part of the one she had eaten, that the bread and meat appeared fresh and he suggested that it be taken to Mr. Kabler, a chemist and bacteriologist, for examination; that he was in his office the remainder of the afternoon after the plaintiff left.
Doctor Bernstorf testified that he first met the plaintiff on September 12, when she came to his office and complained of cramping and sickness of her stomach. She said she had been vomiting and was rather in a state of collapse; th$t she had eaten a sandwich which made her sick; that he had treated her since September 12 and she was still under his- care; that she was suffering from food poisoning when he first saw her on September 12; that she had been weak, her blood pressure was down, she was losing some weight, had indigestion, that she would probably never be able to eat certain foods again and is probably allergic to pork; that he couldn’t state
Doctor Gouldner testified that he had examined the plaintiff the day before and found her a very nervous woman, with a high pulse
Doctor Callahan testified that he had examined the plaintiff on the day he was testifying, and that he found her physical condition to be normal in all respects except that she was very nervous and “as to her eyes.” He testified that ordinarily it takes food poisoning about four hours to develop after the food is eaten and that her condition of nervousness had no relation to a sandwich eaten by her on September 12. He said she told him that she became sick fifteen minutes after she had eaten the sandwich, but that food poisoning would not come on within fifteen minutes, as that would not give her time to assimulate the poison to produce the toxic condition; that if she had a severe case of food poisoning it would have lasted twenty-four to forty-eight hours; that the symptoms she was then complaining of had nothing to do with food eaten the previous September; that there might be some connection between the condition of her eyes and her nervousness; that ptomaine poisoning might cause loss of weight during the next week or two afterward; that the plaintiff had lost her left eye as a child; that she wore a glass eye and as a result of the injury has an eye “astigment” in the right eye which quite possibly would have a great' deal to do with her nervous condition.
Mrs. Frank, plaintiff’s mother, testified that her daughter couldn’t see very well; that after she ate half of the sandwich she handed it to her; that the meat looked dark and the bread was green and black; that the girl at the counter threw it in a can and handed her another that she couldn’t eat; that her daughter’s lips were pale and her face was white. She told about the visit to Doctor Chipps’
Witness Shearman was qualified as an examiner of questioned documents and stated that he had been so testifying for more than twenty years and had devoted all of his time to that study since 1917. He testified in detail as to the separate entries in question in Doctor Bernstorf’s records and said that the relative position of the pen and the paper was the same over a period of nearly two months, that in his opinion the entry “Delores Taylor” in the cases where it appeared as the last name on the respective pages had been made within a week because every entry was remarkably like the others as to position on the pages; that they were alike as to the notations following them; that they were much different from the other entries in the book in most instances; that the book had been in a constant position to the writer; that there were a few normal entries, namely on September 12, the first entry on October 11, the first entry on February 6, and an entry on February 27, which latter entry was not shown on the card; that in his opinion much of the card, if not all of it, was written at the same time, because of the tendency of the writer to go to the left side and because of the slight difference of ink color as between the entries; that the ink color of the entries in question were too consistent over a three-and-one-half-months period.
Vern L. Taylor testified that he had never been a patient of Doctor Bernstorf and that he was not in his office on October 13, 17 or 22, 1938. Ela Taylor, his wife, testified that she was treated in December, 1938, for a sore throat but she was not in his office at any time within sixty days prior to her December illness, as far as she could recall.
Miss Clinton, stenographer in Mr. Sowers’ office, testified that she kept the names of all the persons who enter the office, and her books showed that the first time plaintiff came to the office was on October 11, 1938.
Employees of the store testified that subsequent to the complaint, a sandwich which they identified as the one in question was taken fx-om the garbage can in which it had been thrown; that there was no indication that there was anything wrong with it and that it was
A number of witnesses both for plaintiff and for defendant testified concerning the plaintiff’s physical appearance and condition prior to and after September 12. Recital of that testimony, substantial but conflicting, is not required in presenting the issue here determined.
In the journal entry of judgment is noted the overruling of defendant’s demurrer to the plaintiff’s evidence, but the abstract does not show the demurrer nor the grounds assigned therein. Appellant, however, does not here urge the merits of the demurrer, but contends that the verdict was procured by fraudulent testimony, that it was contrary to the evidence, and that the trial court abused its discretion in refusing to set it aside and grant a new trial. In support of the motion for new trial there was submitted an affidavit of the county director of welfare to the effect that welfare payments had been made to the plaintiff by his office from August, 1937, until May, 1939, in the total sum of $506.52 cash and $121.56 in clothing, food, etc., and that subsequent to November 1, 1937, the plaintiff had received from $26.23 to $28.43 a month in cash as blind assistance, and that dental and medical services in the amount of $1.50 had been furnished in February, 1937. This affidavit was submitted in view of the following statements made by plaintiff’s counsel in his opening argument to the jury:
“I am a lawyer representing this client. She is not a WPA worker. She is blind in one eye and the other one is defective, that is true. She is not a chiseler, because if she was a chiseler she and her little boy would be on WPA, but not doing that and not being a chiseler, she is trying to make a living and not charge the taxpayers with it, and yet they make us come into court and feel like a bunch of criminals.”
Certainly no discredit would necessarily attach to the plaintiff if she had received aid “charged to the taxpayers.” But there was nothing in the evidence concerning the matter, and the comment was clearly intended to influence the jury by injecting matters outside the record. Although the comment was manifestly improper, and the affidavit presented on the motion for a new trial was pertinent, we cannot say that this particular comment alone, which the court permitted to stand, so prejudiced the rights of the defendant as to require a new trial. Nor is it our function to pass upon the weight of the evidence on the question of whether the plaintiff was injured by unwholesome food served by the defendant. That issue was for the jury to determine in the face of the conflicting testimony heretofore summarized. We are concerned, however, that the jury be permitted to determine it in a trial lawfully and properly conducted.
We come now to consideration of other statements made to the jury by plaintiff’s counsel.
In his opening argument counsel said:
“They have brought in here paid experts and I am telling you they can pay experts; we can’t. But they have brought in paid experts to testify the way they want their case and the way they want to present their evidence.”
Objection was made to this statement on the ground that it was improper. The objection was overruled. Plaintiff’s counsel then continued:
“You will notice that the court reporter is taking a record of my argument because of their great precautions of this big corporation on their appeal in the higher court.”
Objection to this statement was sustained and the jury instructed to disregard it. Again counsel for plaintiff said:
“All these witnesses are working for the defendant and they are relying upon the defendant for their livelihood; even the doctors; even the chemist; even the rubber expert; they are all relying for their livelihood upon this corporation; this defendant.”
Objection to that statement was overruled. In his closing argument plaintiff’s counsel said:
“I have never yet tried a case on the other side of Mr. Fleeson but that he made the plaintiff feel like a thief.”
Objection to that statement as an improper argument was sustained, but no direction given to the jury to disregard it. Other statements from plaintiff’s argument have been heretofore referred to.
There was also submitted, as showing prejudice, on the motion for new trial the affidavit of one of the jurors to the effect that a woman juror had stated during the deliberations, and in the presence of the other jurors, that “. . . it cost ‘Babs’ Hutton more to get her count than the plaintiff was asking in this case and that she did not like ‘Babs’ because she had blondined her hair” (“Babs” Hutton being a Woolworth heiress of considerable newspaper notoriety).
In extenuation of the improper remarks made by plaintiff’s counsel, it is urged that they were incited by improper attacks upon him by counsel for the defendant. No such remarks are shown by the record before us, and we have no way of determining what basis, if any, there is for such allegation. Moreover, if such improper remarks were made by defendant’s counsel it was the duty of opposing counsel to make proper objection and the duty of the court to see to it that proper bounds were observed. This court has consistently followed the general rule against imposing narrow and unreasonable limitations upon argument of counsel made to the jury. Counsel are entitled to comment freely upon the evidence, upon the credibility of witnesses where such comment is based upon facts appearing in the evidence, and to state their own views concerning the evidence. But countenance is not to be given to arguments based in no way upon the evidence or to appeals outside the record manifestly intended to create passion and prejudice on the part of the jury. Counsel have the unquestionable privilege to indulge in all fair argument in support of the contentions of their clients, but no right to appeal on the mere ground that the opposing party is a large corporation or of such wealth that a judgment against it would be no considerable burden upon it. It is impossible to lay down any definite rule as to when an improper argument by counsel, objected to at the time, will be ground for a new trial, and the circumstances of each case are controlling (2 R. C. L. 453). This matter is largely in the hands of the trial court. Where it appears, however, from the whole record that a sound discretion has not been exercised in controlling the argument of counsel and the right to a fair and impartial trial has been prejudiced, a new trial will be granted (2 R. C. L. 435). It is stated in 46 C. J. 108, that “If it is reasonably
“If the trial court holds that under all the facts and circumstances in the case there exists no reasonable doubt as to whether harm has resulted from improper argument, and it appears from the record on appeal that under all the facts and circumstances such doubt does exist, the holding is erroneous.” (p. 432.)
Upon examination of all of the facts and circumstances shown by the instant record it is our opinion that unwarranted latitude was permitted counsel for the plaintiff in his argument, outside the record, and that the only purpose and the probable effect of the improper comments heretofore quoted were to produce a prejudicial attitude toward the defendant on the part of the jury and thus prevent a fair and impartial trial.
The conclusions already reached make unnecessary a consideration of defendant’s contention that the amount of the verdict was excessive.
The judgment is reversed with directions to grant a new trial.