Opinion
No. 32072.
February 10, 1936.
1. TRIAL.
Where request for peremptory instruction was made jointly in behalf of two defendants, court was not required to separate requests, even though peremptory instruction might properly have been given as to one defendant.
2. AUTOMOBILES.
In action against daughter and her parents for injuries sustained by pedestrian struck by family automobile driven by daughter, peremptory instruction for father should have been granted, since family purpose doctrine does not apply in Mississippi.
3. NEW TRIAL.
Granting of new trial for newly discovered evidence is not favored, and evidence relied on should be subjected to closest scrutiny, and new trial granted only in extremely exceptional cases where justice definitely requires it.
4. CONSTITUTIONAL LAW.
A "trial by jury" in a court of superior original jurisdiction means a jury of twelve qualified persons who shall decide the facts under superintendence of trial judge, who shall have sole power to declare the law, and, although Legislature may regulate manner and method of instructing jury upon the law, it cannot prohibit judge's exercise of such power (Const. 1890, section 31).
5. TRIAL.
Statute prohibiting judge to charge law except upon written request of party was not intended to transfer power to instruct jurors as to the law to any person other than trial judge (Code 1930, section 586).
6. TRIAL.
Counsel to prevent opponent from attempting to instruct jury in guise of argument upon points not covered by written instructions, or from substantially departing from written instructions, should request instruction that all the law to be considered by them is contained in written instructions given by court.
7. TRIAL.
Where attorney, representing pedestrian who had been struck by automobile at street intersection, had in argument to jury argued that the first to the crossing had right of way, defendants' attorney should have objected and asked that argument be suspended until he could present instruction that such was not the law and that all the law to be considered by jury was contained in written instructions.
8. TRIAL.
If attorney in argument to jury makes an improper argument upon the law after jury has been instructed that all the law to be considered by them is contained in written instructions, the point may be made and reserved in same manner as in cases of improper argument on the facts.
9. TRIAL.
If in course of argument to jury new propositions of law arise or, upon objections made, counsel realizes that he has exceeded written instructions, counsel can then and there request additional written instructions.
APPEAL from circuit court of Lauderdale county. HON. ARTHUR G. BUSBY, Judge.
Jacobson Snow, of Meridian, for appellants.
The court below erred in refusing to grant instruction No. 1 and instruction No. 2 to charge the jury to find for the defendants.
While it is the duty of the driver of an automobile to be on the lookout, at the same time, a pedestrian crossing the street also has the duty to be on the lookout for the approach of automobiles or vehicles.
Coca-Cola Co. v. Watson, 161 Miss. 108, 120, 134 So. 824; Hall et al. v. Caughran, 160 Miss. 571, 134 So. 576; Monroe v. Eager, 131 So. 719; West v. N.Y. Transp. Co., 94 N.Y. Supp. 426.
Where the evidence does not tend to prove the plaintiff's cause of action the court may instruct the jury to return a verdict for the defendant.
I.C.R.R. Co. v. Fowler, 123 Miss. 826, 86 So. 460; Boggs v. Jewett, 127 Miss. 308, 90 So. 13.
Appellants contend that the court below erred in not granting its motion for a new trial because the overwhelming weight of the testimony of the case as to liability vel non was with defendants, and being of such character that the verdict of the jury and the judgment of the court rendered therein should not be permitted to stand.
Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; Y. M.V.R. Co. v. Pittman, 169 Miss. 667, 153 So. 382; Justice v. State, 170 Miss. 96, 154 So. 265; Universal Truck Loading Co. v. Taylor, 164 So. 3.
The court below erred in refusing to grant to the defendants their motion for a new trial of the case because of newly discovered evidence relative to the testimony of witness D.T. Rogers.
Southern Railroad Co. v. Elder, 110 Miss. 461, 71 So. 549; 46 C.J., page 280, sec. 242, and page 416, sec. 472.
The court erred in refusing to grant the defendants' request that a mistrial be entered in this case, which motion was made and directed to the argument of counsel for plaintiff to the jury, and which argument and exceptions and motion is set out in the special bill of exceptions taken thereto and proceedings thereon.
N.O. N.E.R.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; J.J. Newman Lbr. Co. v. Norris, 130 Miss. 751, 94 So. 881; White's Market Grocery Co. v. John, 153 Miss. 60, 121 So. 825; Pickwick Greyhound Lines v. Silver, 155 Miss. 765, 125 So. 340; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356.
The verdict of the jury in the sum of nine thousand five hundred dollars is grossly excessive and evinces biased passion, prejudice and unfair attitude on the part of the jury against the defendants. The verdict of the jury and the judgment rendered thereon by the court clearly and positively shows that the jury unfairly and unlawfully failed to consider the negligence of the plaintiff in arriving at the amount of the verdict as is clearly shown by the grossly excessive amount of the verdict rendered.
J.J. Newman Lbr. Co. v. Norris, 130 Miss. 751, 94 So. 881; N.O. N.E. Ry. v. Jackson, 140 Miss. 375, 105 So. 770; White's Market Grocery Co. v. John, 153 Miss. 860, 121 So. 825; Pickwick Greyhound Lines v. Silver, 155 Miss. 765, 125 So. 340; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356; Brush v. Laurendine, 168 Miss. 7, 150 So. 818.
The testimony clearly shows that there was no relation of master and servant existing between Miss Sarah Dement, the adult daughter of Mr. J.V. Dement, and Mr. Dement at the time of the accident.
Woods v. Franklin, 151 Miss. 642, 118 So. 450.
The relation of master and servant has to be proven directly and not by presumption.
Woods v. Clements, 113 Miss. 720, 74 So. 422, 114 Miss. 301, 75 So. 119; Harrington v. Gough, 164 Miss. 802, 145 So. 621; Smith v. Dauber, 155 Miss. 694, 125 So. 102; Culpepper v. Holmes, 170 Miss. 235, 154 So. 726; Hobson v. McLeod, 165 Miss. 853, 147 So. 778.
The court below erred in submitting the case to the jury without requiring the plaintiff to request written instructions to the jury on the plaintiff's theory of the case and permitting counsel for plaintiff to argue orally to the jury what he considered the law of the case, and without any written instructions submitted to the jury as to the plaintiff's theory of the case; and also, the court below erred in permitting the jury to pass upon the case and render a verdict for the plaintiff without having any written instructions submitted to the jury to find for the plaintiff in any event of the case.
J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; G. S.I. v. Simmons, 153 Miss. 338, 121 So. 144; 2 Thompson on Trials (2 Ed.), sec. 238.
The general rule of common law was that a new trial would be granted where an injustice had been done.
The purpose of courts is to mete out justice between litigants. This purpose fails where a verdict is permitted to rest upon mistaken testimony.
46 C.J. 81, par. 29 (3), and 229, par. 185 (5); 20 R.C.L. 299, par. 80; Queen Ins. Co. v. Betbeze, 53 So. 592; Powell v. Commonwealth of Virginia, 133 Va. 741, 112 S.E. 657; Vanden Hoek v. Pierce, 230 Mich. 266, 202 N.W. 947; Wright v. Hines, 235 S.W. 831; Turner v. So. R.R. Co., 121 S.C. 159, 113 S.E. 360; Scoffield Rolling Mills Co. v. State, 54 Ga. 635; Beverage v. Chellain, 1 Ill. A. 231; Pickering v. Kirkpatrick, 36 Iowa, 163; Warren v. Hope, 6 Maine, 479; Randall v. Packard, 1 Misc. 347, 20 N Y Supp. 718, 142 N.Y. 47, 36 N.E. 823; Codington v. Hunt, 6 Hill 595; City Saving Fund v. Shoff, 17 Pa. Dist. 857; House v. Slayer, 3 Pa. Dist. 320; Richards v. Fisher, 1 Bing. 145, 8 E.C.L. 444, 130 Reprint, 59; Dudley v. Robbins, 3 C. P. 26, 14 E.C.L. 432; Truebody v. Brain, 9 Price, 76, 147 Reprint, 26; Doe v. McGill, 5 W.C.Q.B.O.S. 56; Van Epps v. McKinney, 189 N.Y. Supp. 910; Pettibone v. New Mexico, 199 C.C.A. 581, 201 Fed. 489; Bussey v. State, 69 Ark. 545, 64 S.W. 286; Myers v. State, 111 Ark. 399, 163 S.W. 1177; Dennis v. State, 103 Ind. 142, 2 N.E. 399; State v. Washington, 108 La. 226, 32 So. 396; State v. Myers, 154 Minn. 242, 191 N.W. 597; State v. Moberly, 121 Mo. 604, 26 S.W. 364; People v. Fridy, 83 Hun. 240, 31 N.Y. Supp. 399; People v. Cohen, 117 Misc. 158, 191 N.Y. Supp. 831; Chapel v. State, 6 Okla. Cr. 398, 119 P. 139; Com. v. Yatsin, 7 Sulp. 349; United States v. Dacir, 26 Philippine, 503; Mann v. State, 44 Tex. 643; Hines v. State, 37 Tex.Crim. 339, 39 S.W. 935; Carter v. State, 75 Tex.Crim. 110, 170 S.W. 739; McConnell v. State, 200 S.W. 842; Barker v. State, 223 S.W. 457; Atkins v. State, 247 S.W. 286; Green v. State, 252 S.W. 499; State v. Powell, 51 Wesl. 372, 98 P. 741; State v. Speritus, 90 S.W. 459.
There are many other cases where new trials have been granted where mistake has been discovered in the testimony after verdict rendered and we submit the ends of justice demand a new trial in a case of this kind.
M.V.B. Miller, of Meridian, for appellee.
We submit a jury could rightfully conclude from appellee's testimony, and the facts admitted by appellants, the driver of appellant's car was negligent in not keeping a lookout and not keeping the car under control and in driving at a greater rate of speed than was reasonable and proper under the circumstances.
There are numerous Mississippi decisions in which facts are so similar as to make the holdings in these cases controlling in the case at bar. These decisions are numerous and clear.
Avery v. Collins, 157 So. 696; McDonald v. Moore, 131 So. 824; B. Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807; Snyder v. Campell, 145 Miss. 287, 110 So. 678, 49 A.L.R. 1402; Reid v. McDevitt, 163 Miss. 326, 140 So. 722; Standard Coffee Co. v. Carr, 157 So. 686; Gulf Refining Co. v. Miller, 150 Miss. 168, 116 So. 296; Somerville v. Keeler, 145 So. 722; McLean v. Culpepper, 155 So. 345; Elmsley v. Georgia Pacific Ry. Co., 10 So. 41; Daniel v. Livingstone, 168 Miss. 311, 150 So. 663; Universal Truck Loading Co. v. Taylor, 64 So. 3.
The pleadings and instructions clearly show that the family purpose doctrine is not involved in this case.
The trial court should have decided as a matter of law, if the question had been presented, that appellant Miss Dement was the agent and servant of her father, J.V. Dement, at the time of appellee's injuries.
Winn v. Haliday, 69 So. 685, 109 Miss. 691; McCaffery v. Lukens, 67 Pa. Super. 231; Kichefsky v. Wiatrzykowski, 210 N.W. 679; Donaghue v. Hayden, 208 P. 1007; Smith v. Jordan, 97 N.E. 761; Galtney v. Wood, 149 Miss. 56, 115 So. 117; Greene v. Greene, 110 So. 218; Runnels v. State, 122 So. 769, 154 Miss. 621.
As to newly discovered evidence applications on this ground are not favored by the courts, and in order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice as a last resort to escape the consequence of an adverse verdict, such applications should always be subjected to the closest scrutiny by the court, and the burden is upon the applicant to rebut the presumption that the verdict is correct and that there has been a lack of due diligence.
20 R.C.L., pages 289, 290 and 300; Cooper v. State, 53 Miss. 398; Reid v. North Park Dodd Trust Co., 159 A. 688; Tovery v. Public Service Ry. Co., 95 A. 265.
Newly discovered evidence which is merely cumulative, or which simply tends to impeach one or more witnesses, is not ground for a new trial; and evidence of the same kind as that already given, to the same point, is cumulative, and not merely corroborative.
Redmond v. Marshall, 137 So. 734; Wright v. Alexander, 11 S. M. 418; Houston v. Smith, 2 S. M. 600.
Appellants are bound by their testimony on the witness stand and vouch for the truthfulness of their witnesses. There were admissions by appellants and their witnesses substantially the same as Rodgers testified about, and, therefore, they cannot complain the court did not permit a new trial so Rodgers' testimony could be excluded thereon.
Goodman v. State, 130 So. 285, 158 Miss. 269; Price v. State, 130 So. 687, 158 Miss. 435; Weatherford v. State, 143 So. 853; Smith v. State, 144 So. 471, 166 Miss. 893; Sanders v. State, 130 So. 112, 158 Miss. 234.
The driver of an automobile must keep his machine constantly under control; he must continue on the alert for pedestrians and others using the streets, and must anticipate their presence. To assume that the way is clear is not his right.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Switzer v. Baker, 160 N.W. 375.
In one breath counsel complains because the court did not grant appellants thirty instructions instead of twenty-seven, and in the next breath complains because appellee did not get any instructions.
Masonite Corp. v. Lockridge, 140 So. 224, 163 Miss. 364; Smith v. G.M. N.R.R. Co., 129 So. 599, 158 Miss. 188; Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459; Pounder v. Day, 118 So. 289, 151 Miss. 436; G. S.I. v. Saucier, 139 Miss. 497, 140 So. 180; Y. M.V.R. v. Luchen, 102 So. 397.
The language complained of is not susceptible to the interpretation counsel put on it
The court did all that the court was called on to do and all that the statute permitted the court to do. He told the jury they had instructions of the court and that they would be governed by these instructions.
The language was not used for the purpose of inflaming the minds of the jury against appellants. It cannot be reasonably said that it could.
Nelms Blum Co. v. Fink, 131 So. 817.
We respectfully submit that the argument was legitimate and proper for the purpose which it was sued, and was not calculated to inflame the passions and prejudices of the jury. Even if it were, where retraction by counsel is had, the courts hold that the opposing counsel cannot be heard to then complain.
Ohio County Drug Co. v. Howard, 256 S.W. 705; Peitzuk v. Kansas City Ry. Co., 232 S.W. 989; Western Railroad of Alabama v. Mays, 72 So. 461, 197 Ala. 367; American Ry. Express Co. v. Truede, 246 S.W. 1089; Black v. Wilson, 187 S.W. 493; Fitzsimmons v. Missouri Pacific R.R. Co., 242 S.W. 915; Pickwick Greyhound Lines v. Silver, 155 Miss. 765, 125 So. 340; N.O. N.E.R. Co. v. Jackson, 105 So. 774.
The verdict is not excessive.
Pounders v. Day, 118 So. 299, 151 Miss. 436; Gulf Ship Island v. Saucier, 104 So. 180, 139 Miss. 497; 17 C.J. pages 113 to 117; B. Kullman Co. v. Samuels, 114 So. 810, 148 Miss. 871; Miss. Cent. v. Lott, 80 So. 279; Oliver Bus Lines v. Skaggs, 164 So. 10; Southern Ry. Co. v. Crowder, 30 So. 592; Montgomery Traction Co. v. Knabe, 48 So. 505; Hines v. Wimbish, 85 So. 767; Central of Georgia Ry. Co. v. White, 56 So. 575; Perkins v. Sunset Telephone Telegraph Co., 103 P. 191; Caver v. Eggerton, 127 So. 727, 157 Miss. 88.
Argued orally by Gabe Jacobson and E.L. Snow, for appellant, and by M.V.B. Miller, for appellee.
Appellee was seriously injured by being struck at the right-angled intersection of Sixteenth street and Twenty-third avenue in the city of Meridian, in the daytime, by an automobile driven northward on said avenue by the appellant Sarah Dement, an adult daughter of the other two appellants. We quote from the brief of appellants as follows: "The testimony of Miss Dement, driver of the car, and all the other witnesses who saw the accident, was succinctly this: That when they first saw the appellee he was standing in the street near the curbing. He had stepped off the sidewalk and was standing in the street looking for cars." It is undisputed that this was at the street intersection aforesaid, and Miss Dement stated on cross-examination that she saw the appellee standing in the street near the curbing at the street intersection just before she arrived in front of the Kimbrell house, which appears in the evidence to be about one hundred feet south of the center of the intersection. The testimony is that the automobile was traveling at the rate of from fifteen to twenty-five miles an hour and that appellee was struck when he was near the center of the pavement of Twenty-third avenue and while attempting to cross said avenue, the paved part of the avenue being thirty-three feet wide.
We have stated in the foregoing paragraph only enough of the facts to disclose the pertinency of what we shall hereafter say in regard to the argument to the jury. The stated facts, when taken in connection with the further facts developed in the record, are such that the peremptory instruction requested by appellant Sarah Dement was properly refused; and since the request for that instruction was made jointly in her behalf and that of her mother, the court was not required to separate them. We presume the separate or respective liability as between the daughter and mother was not even argued to the trial court, as it has not been here. We leave the question whether Mrs. Dement shall be entitled to a peremptory instruction entirely open, and for determination on a new trial, if such an instruction shall then be separately requested by her.
The separate request for a peremptory instruction in behalf of the appellant J.V. Dement should have been granted. To refuse it was to apply the "Family Purpose Doctrine," which has been definitely rejected in this state. Smith v. Dauber, 155 Miss. 694, 125 So. 102; Harrington v. Gough, 164 Miss. 802, 145 So. 621; Culpepper v. Holmes, 170 Miss. 235, 154 So. 726, and other cases cited in those opinions. Nothing that was shown here was sufficient to take the case out of these holdings, or to make either the adult daughter or the wife the servant or servants of the father and husband, who was not present and had no part in the alleged tort.
The assignment of error upon the refusal of the court to grant a new trial upon the newly discovered evidence presents a close question. Such a ground for a new trial is not favored by the courts, should be subjected to the closest scrutiny, and is to be sustained only in an extremely exceptional case when it has been made clear that the interest of justice definitely requires it. We have concluded, however, taking the entire transcript of the trial, that this case comes within the allowance of the rule in the interest of justice, and that the motion for a new trial should have been sustained. We do not pursue the discussion of this point further, because of the length necessary to properly deal with the next succeeding point.
The third point raised is one which has in some form been frequently presented in very recent years, and for that reason we have determined to deal with it more fully at this time, and so far as the present record will permit. The point has reference to the argument made to the jury by plaintiff's attorney, wherein, without requesting any instructions from the court and when not covered by any instruction granted at the request of defendants, the attorney for plaintiff stated and argued to the jury a vital point of law which, as stated by him, was erroneous in substance, and which, if the same statement of the law as made by plaintiff's attorney and in the form as stated by him had been contained in a written instruction granted by the court, would have amounted in practical effect to a peremptory instruction in behalf of the plaintiff, and would have constituted reversible error.
We have already noted, in effect, that the overwhelming weight of the proof is that the plaintiff had first reached the crossing and had proceeded a foot or two into the street and was looking to see if he had an open way to get across, and this was before the automobile had reached that crossing. In his argument plaintiff's attorney opened as follows:
"May it please the Court and you gentlemen of the jury: This is a case that Mr. Summer is willing for any twelve men to decide. We are not only willing for the first twelve men that came in this box to decide this case, but he is willing to rest his right to recover without a single instruction to this jury except the instructions asked for by the defendants. Now gentlemen, when a case is that plain there is not much use in using much time, it seems to me, in arguing. We are willing to rest our right to recovery without a single instruction except the instructions granted for the defendant. There is not a single instruction asked for by Mr. Summer in this lawsuit.
"Gentlemen, what are the theories in this case? I say under the law if you believe the testimony of Miss Dement and her very close and personal friends that went on the stand — now what is her statement about it? She says that when she was at Dr. Ray's down there she saw this man standing in the street, looking for a chance to cross in safety. She saw that old man when his head was turned away from her, looking to the north in the opposite direction from the one she was driving. She didn't take her eyes off of it.
"Why, gentlemen, it is a law of the State that the first to the crossing has the right of way. It wasn't a case of anticipating the presence of others, and that is the duty of anybody that drives an automobile to do that."
At this point counsel for defendants did not object or interrupt upon the statement that it is the law of the state that, in regard to pedestrians and automobiles, the first to the crossing has the right of way. It is quite probable that the attorney for the defendants did not at once realize or appreciate what bearing this would have or what the attorney for the plaintiff would make out of the statement or how he would develop it as the argument progressed. But after what now appears in the transcript as at a few paragraphs following the quoted opening, the attorney for the plaintiff reached the point where a striking summary or application was made by him in the following language: "Why, men, when you see an old man standing on the side of the highway, cane in hand and his locks as white as the driven snow, and you are half a block away and you see the old fellow standing there trying to see a way clear to cross, and you have seen him and he is half a block away and then you run over him and you tell me you are without blame? Would an ordinarily prudent man seeing those things and situated like she was, knowing that the man had the right of way there, that he was liable to leave that curb at any time — no. Why, gentlemen, the law requires you to stop then as still as this courthouse if ordinary prudence and caution —"
At this point the attorney for the defendants interrupted and objected in the following words: "If the court please, I hate to interrupt but we object to the argument of counsel that the gentleman had the right of way there. There is no law to that effect, no law has been given or requested to that effect."
To which the attorney for plaintiff replied: "Well, that is just common sense." And the attorney for the defendant at once objected to that statement also. The court responded: "Gentlemen, the jury will have the instructions of the court, all that's been requested." Thereupon the attorney for the defendant moved as follows: "We move the Court to instruct the jury that the gentleman did not have the right of way across the intersection and that there is no law to that effect." To this motion the court responded: "You have the instructions of the Court, gentlemen, and you will be governed by those instructions." Whereupon the attorney for plaintiff resumed his argument in the following language: "Well, gentlemen, the law of reason and the law of common sense — how long is a pedestrian going to be required to wait when he sees one down the street half a block and waits for it to pass and by that time another one is in the street? Brother, he would stay there until the traffic gets off the street, if that isn't the law, wouldn't he? That's common sense." At this point the attorney for the defendant renewed his objection in the following words: "We object to that statement and ask the Court to instruct the jury to disregard it." To which the court responded, "Overruled."
Thus the appellants have taken the proper procedural steps as laid down in Brush v. Laurendine, 168 Miss. 7, 12, 150 So. 818, in order to challenge the propriety of an argument to the jury on the facts but we shall now point out that another and a precedent step is necessary to be taken when the challenge is upon improper argument upon the law.
Under section 31, Constitution 1890, it is ordained that "the right of trial by jury shall remain inviolate." A trial by jury in a court of superior original jurisdiction is universally held to mean a jury of twelve qualified persons who shall decide the facts under the superintendence of a trial judge, who shall have the sole power to declare the law. The Legislature under that constitutional provision may regulate the manner and method of instructing the jury by the court upon the law, but it cannot prohibit the exercise of the power to charge the law nor transfer it to the attorneys in the case or to any other person than the trial judge; and, of course, since a statute so prohibiting the power, or undertaking to transfer it, would be invalid, no rule or course of practice would be lawful which would accomplish the same end.
Our statute (Code 1930, sec. 586) which prohibits the judge to charge the law except upon the written request of one of the parties went, therefore, to the extreme limit of legislative power in the regulation of instructions to the jury. We must interpret the statute in the light of constitutional limitations on the legislative authority, and must declare that it was not the legislative purpose to transfer the power to instruct jurors as to the law to any person other than the trial judge, and that no rule or custom or allowance of practice can stand final scrutiny here, which would so operate, except by the consent of the parties.
Accordingly, it was said by us in the recent case Chadwick v. Bush, 163 So. 823, 824, that: "under our constitutional system in this state, jurors are the judges of the facts, and the trial judge, throughout the entire trial, is the sole judge of the law in so far as the judge gives the law in written instructions. Insofar as the trial judge pronounces the law to the jury by written instructions, the jury must follow the law as thus given, or else violate their oaths." In Bangs v. State, 61 Miss. 363, it was said, and has often been repeated, that the method of communication between judge and jury upon the law of the case is by written instructions, and that the presiding judge is the authorized agency by which that information shall be supplied.
The aforementioned considerations have advanced us to the point from which it is necessary to consider only two other cases, already for some time among our decisions. The first is Louisville, N.O. T. Railroad Co. v. Thompson, 64 Miss. 584, 594, 1 So. 840, wherein it was remarked by the court that if counsel for one side argue a matter of law not covered by the written instructions, and which opposing attorney deems unsound, he should request an instruction to meet and overthrow the said unsound legal argument. It is at once to be perceived, however, that the observation made by the court in that case would, as a practical matter, work a considerable hardship on opposing counsel, so that in some cases it might require two attorneys on the same side, one to hear the argument and make notes of the transgressions upon the privileges of argument as to the law, while the other engages in composing and writing instructions to meet those transgressions.
But the court did not permit the practice to remain in any such unsatisfactory and impractical attitude. Later, and in the case, Oakes v. State, 98 Miss. 80, 85, 94, 54 So. 79, 80, 33 L.R.A. (N.S.) 207, which was a prosecution for libel and in which the appellant contended that under section 13, Constitution 1890, the jury was the judge both of the law and the facts, and accordingly undertook to argue the law to the jury and to read law books to the jury in support of his legal argument, this court denied the right to read law books to the jury, and expressly approved the following instruction: "The court charges the jury that all the law to be considered by them in reaching a verdict in the case is contained in the written instructions given by the court, and upon these instructions and the evidence alone should their verdict be made."
So, in any case, when counsel for one side has obtained no instructions, or instructions which do not cover vital features, all that counsel on the other side has to do, to prevent his opponent from attempting to instruct the jury in the guise of argument upon points not covered by the written instructions, or from substantially departing from the written instructions as given, is to request and obtain the quoted and approved instruction taken from the Oakes case, supra. To illustrate, in the case now before us, counsel for defendant should have obtained such an instruction either before the opening of the argument, and far preferably so, Maxey v. State, 140 Miss. 570, 578, 106 So. 353; or else when the plaintiff's attorney had entered upon the extraneous legal argument later objected to, and as soon as defendant's attorney realized what was sought to be made of the argument, defendant's attorney should have objected and asked that the argument be suspended until he could write and present to the court and to counsel on the other side the following instruction: "The court instructs the jury that, as regards automobiles and pedestrians, it is not the law of this state that the first to reach a street crossing has the right of way thereat; and the court further instructs the jury that all the law to be considered by them in reaching a verdict in this case is contained in the written instructions given by the court, and upon these instructions and the evidence alone should their verdict be made." By such an instruction the attorneys for both sides will be confined to the written instructions as completely as they are to the evidence of record, and if either of them go out of or beyond the written instructions, the point may be made and reserved exactly as in cases of improper argument on the facts, and as laid down in Brush v. Laurendine, supra.
It is urged that to allow interruptions and objections, such as we are here discussing, during the progress of the argument of counsel, would be to permit the argument to be cut to pieces by such interruptions and objections often interposed for the deliberate purpose to confuse and to destroy the continuity and force of the argument. There are three answers to this contention: First, the same contention would have equal force and bearing in respect to interruptions and objections interposed against improper arguments on the facts, and the right to interrupt and object in that regard has long been established in our decisions. Second, counsel for both sides know, or ought to know, what argument they respectively intend to pursue and can easily forestall such interruptions by obtaining instructions, before the argument begins, to cover the line of argument which they intend to present. And, third, when counsel have procured instructions, or the other side has procured them, covering the substantial portions of the argument, and in the argument counsel stays within the record both as to the instructions and the facts, any interruptions by the other side will harm only the objector in the minds and eyes of the average juror. Every practitioner knows of the effect of unsustainable and contentious objections and that such interruptions, especially if persistent, redound nearly always to the distinct hurt of the objector, and to the advantage of the other party.
We make one final observation: It may be said that during the course of the argument, propositions of law will arise and will be perceived as pertinent and material to the case, but which had not previously occurred to counsel and which he ought to be allowed to present to the jury; or that upon objections made, counsel will realize for the first time that he is traveling beyond the record of the law as contained in the written instructions. In either of such events, counsel above referred to can then and there request a written instruction, or instructions, to cover which the court will grant if correct and when requested in such manner and time as the court in sound discretion will deem just to be allowed. But see Montgomery v. State, 85 Miss. 330, 337, 37 So. 835, and Boykin v. State, 86 Miss. 481, 38 So. 725.
Reversed and remanded.