Opinion
No. 38928.
November 9, 1953.
1. Assault and battery — principal and agent — trial — defenses — self-defense — agency — question for jury.
In action to recover damages for injuries resulting from an alleged assault on plaintiff by one of the defendants while that defendant was allegedly acting as agent for the other defendant, wherein defenses of self-defense and nonagency were interposed, question of whether defense of self-defense was established, and question of agency, were for the jury who are the judges as to credibility of witnesses.
2. Assault and battery — principal and agent — evidence — sustained verdict for defendants.
In such case evidence sustained verdict for defendants.
3. Trial — argument to jury — power and duty of trial court to control — review by appellate court.
Trial Court has power and duty to see that privilege of argument to jury is not abused and action of Court in controlling argument of counsel to jury will not, in absence of clear abuse of discretion, be reviewed by appellate court.
4. Trial — improper argument to jury — properly controlled by trial court.
Where counsel for plaintiff in argument to jury made improper statement that "if this was not a case of liability the Court would not have permitted it to be submitted to you," and defendants' counsel made no objection to the statement, Trial Court did not err in remarking from the bench that statement made by plaintiff's counsel was not true and that question of liability was submitted on instructions given to jury and that liability was for jury to pass on.
5. Trial — employee — existence of business relations — incompetent as juror.
An employee of a party to a suit is incompetent as a juror and the existence between a proffered juror and a party to a suit of business relations which might be calculated to influence his verdict is sufficient to disqualify the juror.
6. New trial — juror — evidence — sustained competency of.
Where plaintiff on motion for new trial called juror as witness, and juror admitted that he had been asked on voir dire examination by plaintiff's counsel whether plaintiff ever worked for defendants or any member of their immediate family, but juror testified that he had answered that he had once worked for an elderly woman of same name as defendants but did not know whether she was a wife or mother of one of the defendants, and where counsel for plaintiff failed to pursue the inquiry further, and the record is not clear as to the identity of the person so employing him, and there was no concealment on the juror's part, even though counsel for plaintiff testified that juror never mentioned on his examination that juror had worked for mother of one of the defendants, the evidence was ample to sustain the action of Trial Court in deciding the issue of alleged incompetency of juror adversely to plaintiff.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, Judge.
W.L. Guice, Biloxi; Bidwell Adam, Gulfport, for appellant.
I. The Court erred in pre-emptorily stating to the attorney for the appellant here, the plaintiff below, in the presence of the jury that a statement made by this attorney was not true, there being no objection by the defendant, and such reprimand being made in the presence of the jury and in a manner tending to influence the verdict of the jury. Brush v. Laurendine, 168 Miss. 7, 150 So. 818; 64 C.J., Sec. 93 p. 92.
II. The Court erred in not holding that the failure of the juror J.R. Wood to identify his connection with the defendants' family and his acquaintance with such family did not deny the plaintiff in a closely contested case the right to a fair and impartial jury. Berbette v. State, 109 Miss. 94, 67 So. 853; Hubbard v. Rutledge, 57 Miss. 7; Louisville, N.O. T. Ry. Co. v. Mask, Adm'x, 64 Miss. 738, 2 So. 360; State v. Atwood, (La.), 27 So.2d 324; State v. Joiner, (La.), 112 So. 503; State v. Oliver, 192 So. 725.
III. The Court erred in not holding that the verdict of the jury was contrary to the law and the overwhelming preponderance of the evidence. Igle v. People's Ry. Co., Del., 93 A. 666; Kory v. Less, 22 S.W.2d 25, 28, 180 Ark. 342; State v. Williams, Del., 18 A. 949; U.S. v. Nourse, 34 U.S. (9 Pet.) 8, 27, 9 L.Ed. 31.
Morse Morse, Gulfport; Howard A. McDonald, Arnaud Lopez, Biloxi, for appellees.
I. The Court did not err in making the statement to Mr. Adam that his statement to the jury was not true. Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Interstate Co., et al. v. Garnett, 154 Miss. 325, 357, 122 So. 373, 63 A.L.R. 1402; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53.
II. The Trial Court did not err in denying appellant a new trial on account of the juror J.R. Wood. Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680.
III. The Court did not err in holding the verdict was not contrary to the evidence. Calvert Fire Ins. Co. v. Swain, 65 So.2d 253; Cox v. Turner, 133 Miss. 378, 97 So. 721; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; 50 C.J.S., p. 1060, Sec. 277 p. 1061.
This was a suit by George T. Overing, Jr., against Marko and Anthony Skrmetta to recover damages for injuries resulting from an assault, alleged to have been made by Anthony Skrmetta while in the scope of his duties and about the business of Marko Skrmetta. Self defense by Anthony, and his nonagency as to Marko, were the defenses interposed. There was a verdict for the defendants and the plaintiff appealed.
Overing and Marko Skrmetta, both of Biloxi, were the respective owners of different boats which were for hire to patrons for pleasure and deep-sea fishing. The rivalry between the operators was keen. About May 28, 1951, the plaintiff and Anthony Skrmetta became involved in a controversy as they were soliciting prospective patrons. Overing, who was 55 years old and weighed about 170 pounds, received serious injuries. He died while this cause has been pending here, and there was a revivor in the name of Mrs. Lelia Amelia Overing, Administratrix of his estate.
The evidence for the plaintiff, which was fully corroborated by another witness, was to the effect that Anthony Skrmetta, about 28 years of age and weighing 220 pounds, made an unprovoked and cruel assault upon him, as a result of which he sustained the injuries. The serious nature thereof was established beyond question by competent medical authority.
On the contrary, on the merits, the evidence for the defendants, consisting of six witnesses, most of whom were relatives, was to the effect that Overing was the aggressor; that Anthony acted only in his necessary self defense, after being attacked by Overing with a knife; and that only such force was used as was reasonably necessary to repel his adversary.
(Hn 1) Consequently this sharply disputed issue of fact was for the jury, who, under our system, are the judges as to the credibility of the witnesses. Besides the issue as to whether or not Anthony Skrmetta was an agent of Marko Skrmetta was likewise in dispute, and its determination, therefore, was for the jury.
(Hn 2) A thorough consideration of all of the evidence leads to the conclusion that the verdict was not against the great weight of the evidence, and that appellant's motion for a new trial, on that ground, was properly overruled.
Appellant assigned and argued two other grounds on account of which he contends that he was entitled to a new trial, namely, (1) a statement of the trial judge during the argument of the case on its merits, and (2) the incompetency of Juror J.R. Wood, or his concealment of business relations with the Skrmetta family.
In the argument to the jury, counsel for the plaintiff said, "that if this was not a case of liability the court would not have permitted it to be submitted to you." No objection was made by the defendants, but the Judge forthwith said, "that is not true, the question of liability is submitted on instructions given to the jury and it is for the jury to pass on." Whereupon counsel said, "I withdraw the statement. The matter of liability, damages and all other matters are submitted for your determination."
It is contended that the voluntary statement, in effect, meant that counsel was misrepresenting the court's action in the matter, and, owing to the high esteem in which judges are held, this statement was highly prejudicial and likely caused the jury to consider the plaintiff's case as a fraudulent attempt to extort money from the defendants.
The force of this argument cannot be tossed aside lightly. A good and popular circuit judge enjoys the confidence and esteem of most people in his district. He holds an honorable position and it is doubtful if any other officer rates above him in popular confidence and esteem.
(Hn 3) However, in Brush v. Laurendine, 168 Miss. 7, 150 So. 818, it was said: "Whatever may be the differences in detail in respect to the practice in the various jurisdictions, all courts are agreed that it is the power and duty of the trial court to see that the privilege of argument is not abused * * *." See also 53 Am. Jur., Trial, Section 460, pages 363-4, which is in agreement with the above stated rule, and where it is also said that "the action of the trial court will not, in the absence of a clear abuse of discretion in thus controlling argument of counsel, be reviewed by the appellate courts."
(Hn 4) Counsel's argument was erroneous. If it had been objected to, assuredly the judge should and would have sustained the objection. Again in Brush v. Laurendine, supra, it was said that "ordinarily, however, the judge is entitled to the reasonable aid of counsel in this matter * * *." That is, opposite counsel should object to improper argument. But since the argument here was directed solely at what the judge had done, opposite counsel could, with reason, anticipate that the judge would take care of himself. In Pullman v. Lawrence, 74 Miss. 782, 22 So. 53, it was said "if improper remarks are made by counsel, it is the duty of the court to interpose * * *." See also Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373.
We do not think that the judge's language, if it had been used in sustaining an objection to the argument, would have produced on the minds of the jurors the effect here contended for by the appellant. Neither do we think that such language, used by the judge on his own motion, did so. Jurors, as a rule, are men of common sense, and are not wholly uncharitable toward counsel, who in the heat of a trial, may fall a victim to partisanship and overstep the bounds of proper argument.
As heretofore stated, the second complaint is in regard to the Juror Wood.
The voir dire examination does not appear in the record. On the motion for a new trial, Wood was called as a witness by the appellant. He admitted that he was asked by counsel for plaintiff whether he had ever worked for the defendants or any member of their immediate family and his answer was, "I said I worked for Mrs. Skrmetta — Mrs. Skrmetta that lived on Oak Street, the old elderly lady — I wouldn't know whether she was that gentleman's wife or mother. I did. I floored a building there for them." He did not know the relationship.
Counsel for plaintiff testified that Wood never mentioned on his voir dire examination, that he knew Mrs. Skrmetta or that he had been working for anybody by that name. He was under the impression that the juror was a resident of Saucier and not of Biloxi; and if he had known of the work for Mrs. Skrmetta, he would not have accepted Wood as a juror.
In Berbette v. State, 109 Miss. 94, 67 So. 853, it was recognized that (Hn 5) an employee of a party to a suit is incompetent as a juror; and that the existence between a proffered juror and a party to a suit of business relations which might be calculated to influence his verdict is sufficient to disqualify the juror. But it is not clear from the record here as to whether the Mrs. Skrmetta for whom the juror floored a building was the wife or mother of Marko Skrmetta. It is certain, however, that the juror was not regularly employed by a Mrs. Skrmetta. Besides no Mrs. Skrmetta was a party defendant. In addition, according to the evidence of Wood, it appears that he made a disclosure of such knowledge as he had. The failure to pursue the inquiry and thus establish the true identity of the Mrs. Skrmetta for whom he worked cannot, therefore, be attributed to any concealment on his part. (Hn 6) The trial judge who heard the evidence on this question decided the issue adversely to the appellant, and there was ample evidence to sustain that conclusion.
Wherefore it follows that the judgment of the lower court ought to be, and is, affirmed.
Affirmed.
McGehee, C.J., and Hall, Holmes and Ethridge, JJ., concur.