Tucker v. Henniker , 41 N.H. 317 ( 1860 )

Fowler, J.

The instructions upon the first point were in the precise language of the decision of this court in the recent case of Clark v. Barrington, 41 N. H. 44, where the question was fully considered, and are fully sustained-by the highest courts of Maine, Vermont and Massachusetts. See authorities cited by the plaintiff’s counsel; also, Hayden v. Attleborough, 7 Gray 338, and Norris v. Litch-field, 35 N. H. 271.

The defect in the horse, if one existed without the knowledge of the plaintiff, and she were in no fault for not knowing it, must be regarded as an accident which could not be prevented by ordinary care and prudence on her part, and not as any fault of hers contributing to the injury sustained by her.

The instructions upon the second point, although generally correct, contain a single expression in the explanation of what constitutes ordinary care and skill, which, in the opinion of the court, might have misled the jury as to the proper standard by which to determine it. The plaintiff' was bound only to the exercise of ordinary care, skill and prudence in the management of her horse; such care, skill and prudence as persons or people in general were accustomed to exercise in managing their horses. Common or ordinary diligence is defined by Story as “ that degree of diligence which men in general exert in respect to their own concerns;” “which men of common prudence generally exercise about their own affairs in the age and country in which they live.” Story on Bailments, sec. 11. In a country where women are accustomed, as among us, to drive horses and carriages, there can be no doubt that the degree of care,, skill and prudence required of a woman in managing her horse would be precisely that degree of care, skill and prudence which persons of common prudence, or mankind in general, usually exercise, or are accustomed to exert, in the management of the horses driven by them. Now the language of the charge in the court below might be construed as making the average care, skill and prudence of women in managing horses, instead of the average care, skill and prudence of mankind generally, including all those accustomed to manage horses, whether men or women, boys or girls, the standard by which to determine whether or not the plaintiff had been guilty of any unskillfulness or want of care in the management of her horse at the time of the accident. As it may be doubtful whether this average would be higher or lower than that of mankind in general, and as it is not the precise standard prescribed by the law, and the jury may possibly have been misled by it, the instructions must be held to have been erroneous on this point. Jones on Bailments 6; Farnum v. Concord, 2 N. H. 892 ; Hubbard v. Concord, 35 N. H. 52 ; Tompkins v. Salt-marsh, 14 Serg. & Rawle 275; Vaughan v. Menlove, 3 Bing. N. C. 468 ; Batson v. Doravan, 4 B. & A. 21-30; Doorman v. Jenkins, 2 Ad. & El. 256.

We also think the court erred in permitting the counsel for the plaintiff to proceed with his argument upon facts not in evidence, and having no proper bearing upon the questions i.n issue, after their attention had been called to the matter, and their interposition sought, although the course of remark permitted might have seemed to be excused by the previous allusions of the defendants’ counsel to considerations scarcely more pertinent and proper. No fault of the opposite counsel could justify a repetition of that fault by his opponent. The jury are sworn to render a true verdict in every case, according'to law and the evidence given them, and the well established rule of judicial proceedings confines the arguments of counsel before them to comments upon and suggestions in relation to that law and evidence. It would seem utterly vain, and quite useless, to caution jurors, in the progress of a trial, against listening to conversations out of the court room in regard to the merits of a cause, if they are to be permitted to listen in the jury box to statements of facts calculated to have a bearing upon their judgment, enforced and illustrated by all the eloquence and ability of learned, zealous and interested counsel.

It is irregular and illegal for counsel to comment upon facts not proved before the jury as true, and not legally competent and admissible as evidence. The counsel represents and is a substitute for his client; whatever, therefore, the client may do in the management of Ms cause, may be done by his counsel. The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the cause, both as to the law and facts, is unabridged. The range of discussion is wide. He may be heard in argument upon every question of law. In his addresses to the jury, it is his privilege to descant upon the facts proved or admitted in the pleadings ; to arraign the conduct of parties; impugn, excuse, justify or condemn motives, so far as they are developed in evidence ; assail the credibility of witnesses, when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance on the stand, or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wings to his imagination.

To his freedom of speech, however, there are some limitations. His manner must be decorous. All courts have power to protect themselves from contempt, and indecency in words or sentiments is contempt. This is a matter of course in the courts of civilized communities, but not of form merely; for no court can command from an enlightened public that respect necessary to an efficient administration of the law, without maintaining, in its business proceedings, that courtesy,- dignity and purity, which characterize the intercourse of gentlemen in private life.

So, too, what a counsel does or says in the argument of a cause must be pertinent to the matter on trial before the jury, and he takes the hazard of its not being so. Now, statements of facts not proved, and comments thereon, are outside of a cause ; they stand legally irrelevant to the matter in question, and are, therefore, not pertinent. If not pertinent, they are not within the privilege of counsel.

But, farther, every person against whom an accusation is made or a suit brought, is entitled to be tried by a jury, and according to the laws of the land. This was- the greatest of all the privileges conferred by magna charla, and is guaranteed by our own fundamental law. This privilege is substantially violated, if counsel are permitted to state facts and comment upon them in argument against the adverse party, which are not before the jury by proofs regularly submitted. The party accused or prosecuted is not only entitled to have a trial by a jury of twelve men duly constituted, but to have his trial conducted according to the course and usage of the common law, and the established rules of judicial proceedings. An essential element in the trial by jury is, that the verdict shall be rendered according to the facts of the case, legally produced before the jurors. They are sworn to give their verdicts according to evidence, and if they find without evidence, or against evidence, or upon evidence incompetent, or not legally admissible for any cause, a new trial will be granted. They cannot even render a verdict upon knowledge within their own breasts; but if a juror has knowledge of facts pertinent to the issue, he may be sworn. The law, with great care, prescribes the rules by which facts are to be submitted to the jury. The testimony must be relevant; the best evidence the nature of the case admits must be produced ; hearsay is excluded ; it must not be d* wn out by leading questions; and, by our Constitution, in criminal trials, the witnesses must be confronted with the prisoner; the right of cross-examination exists in all cases. All these and numerous other regulations are prescribed to determine the admissibility and truth of the facts pertinent to the issue upon which a verdict is to be rendered.

"When counsel are permitted to state facts in argument, and to comment upon them, the usage of courts regulating trials is departed from, the laws of evidence are violated, and the full benefit of trial by jury is denied. It may be said, in answer to these views, that the statements of counsel are not evidence ; that the court is bound so to instruct the jury, and that they are sworn to render their verdict only according to evidence. All this is true ; yet the necessary effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances ; and if they in the slightest degree influence the finding, the law is violated, and the purity and impartiality of the trial tarnished and weakened. If not evidence, then manifestly the jury have nothing to do with them, and the advocate has no right to make them. It is unreasonable to believe the jury will entirely disregard them. They may struggle to disregard them; they may think they have done so, and still be led involuntarily to shape their verdict under their influence. That influence will be greater or less, according to the character of the counsel, fiis skill and adroitness in ai’gument, and the force and naturalness with which he is able to connect the facts he states with the evidence and circumstances of the case. To an extent not definable, yet to a dangerous extent, they unavoidably operate as evidence which must more or less influence the minds of the jury, not given under oath, without cross-examination, and irrespective of all those precautionary rules by which competency and pertinency are tested. Mitchum v. State, 11 Geo. 633, 634 ; Berry v. State, 10 Geo. 522; Hodgson v. Scarlet, 1 Holt N. P. C. 621; 3 E. C. L. 203, 243; Brooke v. Sir Henry Montague, Cro. Jac. 90; 1 Hawk. P. C., sec. 8 ; Cutler v. Dixon, 4 Coke 14 b, note A; Waterer v. Freeman, Hobart 266; Weston v. Dobriet, Cro. Jac. 432 ; Astley v. Cooper, 2 Burr. 807 ; Hodgson v. Scarlet, 1 B. & A. 232 ; 3 Black. Com. 29 ; 1 Saund. 130.

"With these views, the verdict rendered for the plaintiff must be set aside, and

A new trial be granted.