Summary
In Golamb v. Layton, 154 Ohio St. 305, 95 N.E.2d 681 (1950), plaintiff's counsel during closing argument made reference to the financial responsibility of the defendant.
Summary of this case from Eisenhauer v. BurgerOpinion
No. 32033
Decided December 6, 1950.
Negligence — Motor vehicles — Passenger's duty to warn driver — Or attempt to control driver's operation — Requested charge on passenger's contributory negligence properly refused, when — Misconduct of counsel — Not ground for mistrial or reversal, when — Appeal — Trial court's discretion not ordinarily interfered with.
1. A passenger riding in one of two automobiles about to collide is under no duty to warn his driver or to attempt to control such driver's operation of the vehicle, where it appears that everything the passenger could see was equally visible and known to the driver, that there was nothing to indicate to the passenger the danger of a collision until it was imminent, and that there was nothing the passenger could then do to avoid the result.
2. In such circumstances, a request by counsel to the trial court to charge on the subject of contributory negligence with respect to the plaintiff-passenger is properly refused.
3. Although misconduct of counsel in argument to the jury is ever to be condemned, it does not always constitute grounds for ordering a mistrial or reversing a judgment. If the trial court promptly intervenes by admonition to counsel and appropriate instruction and it appears that a verdict for the party represented by such offending counsel is clearly justified by the evidence, the verdict may be allowed to stand.
4. Such matters often rest in the sound discretion of the trial court and where it is apparent from the peculiar facts and circumstances of the particular case that such discretion has not been abused a reviewing court will not ordinarily interfere.
APPEAL from the Court of Appeals for Sandusky county.
The present action grows out of a collision between two passenger automobiles travelling in opposite directions which occurred on the night of November 9, 1946, on U.S. route 20, a few miles west of the city of Fremont. Plaintiff, Walter Golamb, was a passenger in the automobile being driven by the defendant Bernard Macielewicz. They were on their way to work at the same place of employment in the city of Toledo under circumstances which concededly removed plaintiff from the operation of the "guest statute," Section 6308-6, General Code.
As a result of the collision, plaintiff sustained injuries of a substantial nature and instituted an action for damages in the Court of Common Pleas of Sandusky County against Macielewicz, with whom he was riding, and Walter Layton, driver of the other car involved in the collision.
The claim was made in the petition that the combined negligence of the two defendants was the proximate cause of the collision and the resulting injuries to plaintiff. Contributory negligence on the part of plaintiff was not pleaded by either of the defendants and no special instructions on that subject were presented or requested before argument. Neither did the court cover that matter in its general charge.
At the conclusion of the general charge, however, counsel for both defendants asked the court to instruct the jury on contributory negligence, which request was refused.
The record shows the following:
"And thereupon Mr. Stahl presented his opening argument, on behalf of the plaintiff, in the course of which he made substantially the following remarks: That Mr. Smith will be paid by his client and Mr. Hyzer will be paid by his client, but the only way I can be paid is if the plaintiff recovers a verdict.
"[Reporter called into court room.]
"The Court: During the course of the argument reference was made by Mr. Stahl as to the source of his expected compensation for his services in the case.
"Mr. Stahl: I think it should be the exact language. And I do not think it is objectionable.
"The Court: You may put it in the record.
"Mr. Stahl: During the course of the argument counsel for the plaintiff stated that any statement made by counsel for defendants should, of course, be considered in the light of the fact that they had a financial interest in the case and that counsel for the defendants were being paid for their services, for their respective clients, and counsel for the plaintiff, his recovery, of course would have to be paid for, his services, from that recovery; as there would be no other place for the payment of it.
"The Court: The court did then say emphatically that the jury will not consider that statement for any purpose and would not use it in determining the merits of the case."
Counsel for both defendants forthwith made motions to withdraw a juror and continue the cause, which motions were overruled.
A verdict was returned for plaintiff against both defendants.
Separate appeals on questions of law were taken by the defendants to the Court of Appeals where the judgment below was affirmed. Certification of the record by the Court of Appeals, upon allowance of a motion therefor, brings the cause here for review and decision.
It appears that the defendant Macielewicz is now out of the case and is no longer an appellant and that the appeal is presently being prosecuted solely by the defendant Layton.
Messrs. Stahl, Stahl Stahl, for appellee.
Messrs. Culbert, Hyzer Culbert, for appellant.
In pressing for a reversal of the judgment of the Court of Appeals, defendant Layton relies principally on two alleged errors:
1. Failure of the trial court to charge on contributory negligence.
2. Misconduct of counsel for plaintiff in his opening argument to the jury.
Two theories as to the cause of the collision were presented to the jury. Defendant Macielewicz contended, in effect, that defendant Layton suddenly swerved his car from its proper lane of travel across the path of his, Macielewicz's, car; that he, Macielewicz, to avoid a crash, immediately turned the front wheels of his car to the left; that Layton then attempted to regain his proper lane of travel; and that, during his attempt to do so, the collision occurred.
On the other hand, Layton claimed that he was at all times on the side of the road where he properly belonged, and that the collision was due to the fact that the Macielewicz car made a sudden left turn directly in front of him.
From the conflicting evidence introduced, the jury apparently reached the conclusion that both defendants were at fault and chargeable with negligence, and it rendered its verdict accordingly.
In the situation here involved, the question of negligence on the part of one or both defendants was for the jury's determination, and, the jury having resolved that matter in the exercise of the prerogatives accorded it, no basis predicated on such matter exists for judicial disturbance of the finding made.
The events leading up to the collision herein were of rapid sequence — a matter of a few seconds. Defendant Macielewicz and plaintiff both testified that immediately upon the claimed swerve of the Layton car into the path of the Macielewicz car, Macielewicz exclaimed, "What * * * is the matter with those fellows," sounded his horn and turned the front wheels of his automobile to the left, the impact following at once.
In the fifth paragraph of the syllabus of Bush, Admr., v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851, this court announced the rule:
"To warrant the submission of the issue of contributory negligence to the jury it is essential that some evidence be adduced tending to show that the plaintiff [a passenger in the automobile] failed in some respect to exercise the care of an ordinarily prudent person under the same or similar circumstances and that such failure was a proximate cause of his injury and resulting death."
And in the case of McCrate v. Morgan Packing Co. (C.C.A. 6), 117 F.2d 702, opinion written by Judge Florence E. Allen, formerly a member of this court, it was held that, under the law of Ohio, where everything a passenger in an automobile could see was equally visible to the driver and that there was nothing to indicate to the passenger that there was danger of a collision until it was imminent, and nothing the passenger could then do would affect the result, the passenger is under no duty to warn the driver or to attempt to control his operation of the vehicle.
An examination of the record in the instant case convinces the court that no evidence was introduced tending to show contributory negligence on the part of the plaintiff, and that the trial court correctly refused to charge on that subject.
Now as to the misconduct of counsel in his opening argument to the jury. The part of such argument to which the defendant Layton takes exception has been set out above in the statement of facts. Those remarks, although somewhat obscure as to their precise meaning, were highly improper and should not have been made; they cannot be defended. However, the trial judge promptly and emphatically told the jury to disregard them, which was a plain indication of his disapproval.
Under the circumstances narrated, a majority of the court is not prepared to hold that the argument of counsel was so vicious and reprehensible as to call for a reversal of the judgment in plaintiff's favor.
In our opinion, the principle stated in the fifth paragraph of the syllabus of Huckshold v. St. Louis, Iron Mountain Southern Ry. Co., 90 Mo., 548, 2 S.W. 794, quoted with approval in State v. Auerbach, 108 Ohio St. 96, 104, 140 N.E. 507, 510, should be applied here. Such statement is:
"The trial judge who hears the arguments of opposing counsel is in a better position than the appellate court to determine whether he should interfere because of improper remarks, it being a matter within his sound discretion, and it is only where such discretion has clearly been abused that the Supreme Court will reverse the judgment for such cause."
Moreover, this court, in the course of the opinion in Warder, Bushnell Glessner Co. v. Jacobs, 58 Ohio St. 77, 82, 50 N.E. 97, 98, said:
"As much as we reprehend such practice in counsel [the making of improper remarks in argument to the jury], we are not prepared to say that use of such language may not be so far corrected by the court by the reproof of counsel and instruction to the jury, as, in a clear case upon the evidence, to warrant the court trying the case to sustain the verdict rendered."
Defendant Layton makes no claim that the evidence was not sufficient to support a verdict against him or that the injuries suffered by plaintiff were not of a serious and painful nature.
It is probably superfluous to add that cases of this character, involving misconduct of counsel, are to be decided in the light of the peculiar facts and circumstances surrounding the particular case.
For the reasons given, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART and FAUGHT, JJ., concur.
TAFT, J., concurs in the syllabus.