Western & Atlantic Railroad v. Morrison , 40 L.R.A. 84 ( 1897 )

Lumpkin, P. J.

"We shall not discuss in detail the numerous grounds of the motion for a new trial, the overruling of which is the error complained of in the present bill of exceptions. It is a case where an employee of a railroad company, upon conflicting evidence, obtained a recovery for personal injuries. There are no important questions of law involved, except those specially dealt with in the headnotes. The plaintiff's right to a verdict did not turn upon any presumption of negligence raised by law against the defendant. It was a case in which he introduced evidence tending to prove the company’s alleged negligence, to which it replied with evidence tending to show due diligence on its part; and it was therefore simply a matter for the jury to determine upon which side the evidence preponderated.

It appears from the record that one Waters, who was an employee of the defendant in the capacity of fireman at the time when the injuries in question were sustained, and who had excellent opportunities for knowing the truth of the matter, was not introduced as a witness at the trial. He was, however, at the instance of the company, present in court, and this fact was known to the plaintiff’s counsel. The latter, in his argument to the jury, contended that the failure of the defendant to introduce and examine this witness was a circumstance from which an inference could be drawn that, if he had been so introduced and examined, he would have testified to facts prejudicial to- the defendant. The court was requested to compel the plaintiff’s counsel to desist from making such an argument, on the ground that it was improper and illegal; and was also requested to declare a mistrial because of such “improper argument.” The court held that the argument was not improper, and refused to declare a mistrial because of it. It was urged here that these rulings were both erroneous, for the reason that when the defendant produced the witness in court, so that he could have been introduced and examined by the plaintiff’s counsel if he had chosen to do so, there could be no proper inference that he knew anything which would be detrimental to the company. The court also refused to charge the following written request, presented by counsel for the defendant': “As plaintiff’s counsel have argued that as only the engineer was examined as a witness, and not the fireman, that this was a circumstance from which the jury might infer that, had the fireman been introduced, his testimony might have shown negligence on the part of the company, I charge you that when the defendant company in open court tendered this fireman Waters as a witness to be introduced by plaintiff if he desired, this was sufficient to relieve defendant of this presumption.”

While the arguments of counsel should be confined within legitimate bounds, they should not be too greatly restricted. In Spence v. Dasher, 63 Ga. 432, Jackson, Justice, said: “Counsel should have ample latitude in argument, and this court will not interfere when it is allowed by the presiding judge, except in cases of clear abuse of discretion and serious damage to the party complaining.” Again, in Inman v. The State, 72 Ga. 278, Justice Blandford remarked: “Counsel are allowed the largest liberty in the argument of cases before juries, and whether the argument be logical or illogical, or whether the inferences and deductions drawn by them are correct or not, this court will have no power to intervene.” And in Taylor v. The State, 83 Ga. 659, the same Justice remarked that a certain argument made by counsel “may have been •very illogical, but the court could not prevent counsel from drawing illogical deductions from testimony which had been introduced.” These are only a few of the instances in which it has been held that considerable latitude is to be allowed counsel in discussing their cases before juries. It is one thing for an attorney to contend that “such and such” a proposition is true, or that “such and such” an inference is deducible from a given state of facts or circumstances, and quite a different thing for the judge to inform the jury that the positions taken by the attorney are correct. If the law imposed upon the judge the duty of interfering with arguments before juries whenever, in his opinion, the reasoning of counsel was unsound, we apprehend that interruptions of this sort would be very frequent indeed.

It is not necessary to rule in the present case that the contention of plaintiff’s counsel as to the effect of the defendant’s failure to introduce the witness Waters was well taken. It was, after all, a matter to be passed upon by the jury. Nor do we think the argument upon this matter was out of order because the defendant’s counsel had caused Waters to be present in court so that he could have been introduced and examined by the plaintiff’s counsel. Presumptively, all persons will tell the truth when sworn to do so; but we know from experience that it is frequently unwise to call as a witness one who, for any good reason, is likely to be biased or prejudiced in favor of the opposite side. ' Every lawyer who has had much practice in the courts is well aware of this, and generally declines, unless compelled by circumstances so to do, to call a witness whom he has reason to believe is hostile to his client or friendly to the latter’s adversary.

Theoretically, one party may be under as much obligation as the other to introduce a witness who was present at a transaction or occurrence in dispute, and failure to do so may be said to cut as hard against the one as the other, or that it should not cut against either, when the witness is in court and ready to be examined; but in spite of all the reasoning and refining which may be had on this subject, and notwithstanding intimations and expressions to the contrary by learned judges, the great fact remains that a large number of witnesses are, for various reasons, more or less biased; and it certainly is true that a party may with more safety introduce a friendly witness than one who is otherwise—not necessarily from a desire to have perjury committed in his favor by the former, or from a fear that it will be committed against him by the latter, but because, as everybody knows, there is much in the manner in which a witness testifies, a great deal often depending upon his emphasis, upon the clearness or uncertainty of his recollection, upon his animus, and upon a hundred other things which can not well be described but can readily be imagined, all of which, without bringing him into the attitude of swearing falsely, affect and qualify the force of what he says.

The above mentioned theoretical rule is, therefore, too broad for universal application, and the lawyer who does not recognize that this is so is apt to make serious blunders in introducing testimony. As an illustration of the matter with which we are now dealing, suppose there was a matter of fact in controversy between A. and B., the truth of which was known to no other persons except these two and C., a brother of B. A. goes on the stand and gives his version of what occurred ; B., in his turn, gives an entirely different version, but does not introduce as a witness his brother C., though the latter is present in court. Is it not a proper matter for contention by A. that B. failed to introduce his brother because he knew that the brother’s testimony would prejudicially affect B.’s case? And if B.’s counsel should reply to this, “Why did not A. introduce C., unless he feared C.’s testimony would be detrimental to his case?” could not A. properly make reply, “I do not care to go into my opponent’s family for a witness” ? Other such instances might be given, but it is enough to say that in almost every trial the acts or conduct of either party bearing directly upon the questions at issue are legitimate matters of comment. Very frequently, of course, arguments of the nature above indicated should be given little weight, and in each case their value must necessarily depend upon the particular facts and circumstances in proof.

We are of the opinion that the judges should have as little to say about matters of this kind as possible. They should not restrain counsel so long as their arguments are kept within reasonable and proper bounds, and they should also be careful not to usurp the functions of the jury in accepting or in disregarding what the counsel have to say. We therefore think, in the present case, that it was certainly right for the judge to refuse to give in charge the request above quoted. It was not for him to say what effect the production of the employee in court by the defendant ought to have had, and he was surely right in declining to instruct the jury that this, of itself, would be sufficient to relieve the defendant of any presumption or inference that, in case he had been examined, he would have sworn to facts showing negligence on its part.

We do not think the case of Davis & Hatcher, 75 Ga. 645, relied on by the Chief Justice in support of his dissent when this case was decided, is controlling upon the question in hand. No point was raised in that case as to the propriety of any argument submitted by counsel, nor did - this court, in deciding that case, review any charge, or refusal to charge, by the trial court with respect to the failure of the defendant company to introduce its fireman as a witness. The plaintiffs evidently relied mainly, if not entirely, upon the legal presumption of negligence raised by law against the defendant; and the verdict being against them, they sought a reversal of the judgment denying them a new trial. We understand their contention to have been that the railroad company could not successfully and completely demonstrate its diligence, and thus overcome the legal presumption against it, without calling as witnesses both the engineer and the fireman who were employed on the locomotive by the running of which the plaintiffs’ bull was killed. This court held, as matter of law, that the testimony of a single witness, viz. the engineer, was sufficient to acquit the company of negligence, if the jury chose to believe that witness; and Justice Blandford said they had the right to do this, if they thought proper. It is true he did remark that, “under the circumstances of this case, the fireman being present and open to plaintiffs, no inference could be drawn against defendant because he was not sworn”; but we are constrained to regard this remark as being merely obiter, the matter to which it relates not being one upon which it was necessary to pass. The real point ruled in that case was: that a railroad company, sued for the killing of live stock, • and being required to overcome a legal presumption of negligence, was not obliged, in order to do this, to call and examine as witnesses all of its employees who were or might have been cognizant of the facts of the occurrence. The decision rendered holds simply that, in such a case, the company may, if it so desires, rest its defense upon the testimony of a single employee, taking the risk of his being discredited by the jury; and if the jury choose to believe him, the mere fact that the company did not introduce another of its employees is not of itself sufficient cause for setting aside the verdict and awarding a new trial. It will he noted that the headnotes in that case were made by the reporter, and that the opinion itself was the only official utterance of the court. We repeat, that in determining what effect the decision of that case should have on the case now in hand, it must not be overlooked that there was no question whatever with reference to the argument of counsel or to the court’s charging, or refusing to charge, as to what weight or importance the jury should attach to the non-introduction by the defendant of its fireman as a witness.

We deem it unnecessary to the purpose of this discussion to comment at length upon the decision of this court in the case of Anderson v. Savannah Press Company, 100 Ga. 454, to which, we are informed, the Chief Justice will refer in his dissenting opinion. We are unable to find in that case any intimation of a principle in conflict with what is'here laid down; and if the opinion of Justice Atkinson therein contains anything at all relevant to the present question, it supports the view of the same entertained by the majority, for the reason that in that case the rule is distinctly recognized that the non-production of evidence within the control of a party' may authorize the jury to make inferences unfavorable to such party.

The Chief Justice will, in his dissenting opinion, also refer to the cases of Washington v. State, 87 Ga., and Johnson v. State, 88 Ga., and make certain extracts from the opinions therein. Read with reference to the questions under discussion in those cases, it is hoped that the language then used was appropriate and pertinent; but whether so or not, it is difficult to perceive how it can throw much light upon the present controversy, since the question it involves could not possibly have been in mind when those cases were being considered. It is not desired to comment further upon them except to say that in the former, which was a case of arson, the language of the writer which the Chief Justice will quote was used in endeavoring to establish the proposition that the trial judge erred in allowing the solicitor-general, in his argument to the jury, to state “that frequent burnings had occurred throughout the country,” and make this statement the basis-of an argument for a strict enforcement of ■ the law; and in the latter, the question under discussion was, whether an admission by the accused resulted either from a failure of his counsel to examine the State’s witnesses concerning a fact which the court had ruled to be inadmissible, or from a failure to introduce these same witnesses, in behalf of the accused,, for the purpose of proving this identical fact, after their exclusion as witnesses for the State. Immediately following that portion of the writer’s opinion in the Johnson case which the Chief Justice will quote are the following words: “Let us sum up the matter in a nutshell: The solicitor-general offered to prove a fact by one-witness, and stated he could prove it by several others; the opposing counsel objected to the testimony, and the court sustained the objection; then, because this counsel declined to examine these witnesses on the very matter which, at his instance, the court had ruled was not then a proper matter for investigation, and because he refused to introduce these witnesses as his own and examine them about this very matter, it is argued that he thus admits for his client the truth of the thing he had induced the court to rule out. It would be dangerous indeed to object to testimony and succeed in having the objection sustained, or to decline to introduce hostile witnesses, if either of these things resulted in establishing, as against the party so objecting or declining, the truth of that which, from his standpoint and in the opinion of the court, was inadmissible altogether.”

We do not think that any decision of this court, upon a careful" examination thereof, will be found contrary in principle to what is now decided upon the point in controversy.

Judgment affirmed.

All concurring, except the Chief Justice.