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District Court of Appeal, Second District, Division 2, California.

Arthur W. HORN, Plaintiff and Respondent, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant and Appellant.

Civ. 26736.

Decided: March 09, 1964

Robert W. Walker, J. H. Cummins, Edward J. Riordan, Los Angeles, for appellant. Boccardo, Blum, Lull, Niland, Teerlink & Bell, and Edward J. Niland, San Jose, for respondent.

This is a suit for personal injuries brought under the Federal Employers' Liability Act (45 U.S.C.A. § 51) and the Safety Appliance Acts (45 U.S.C.A. § 2) against the defendant railroad. A jury verdict was returned in favor of plaintiff in the sum of $149,000.00. Defendant appeals from the judgment entered thereon.

At the time of the accident plaintiff was a 21-year old brakeman in the employ of the defendant railroad. The switch crew of which plaintiff was a member had just uncoupled and left a caboose in front of the station at Blythe, California. As the locomotive drew away from the caboose, plaintiff, from his position on the footboard at the rear of the locomotive, attempted to prepare the coupler on the locomotive for the next coupling. In doing so he first tried the uncoupling lever, which he testified failed to open the knuckle of the coupler as it was designed to do. He therefore placed his left foot against the knuckle in an effort to push it open (a practice which, although in violation of the railroad's safety rules, was testified by plaintiff's witnesses to be the customary way to open the knuckle under such circumstances). At about the same time the engineer brought the locomotive to an unexpected halt, throwing plaintiff off balance. The caboose which had just been left in front of the station rolled forward against the coupler on the locomotive, crushing plaintiff's foot and necessitating its amputation above the ankle.

Although defendant urges several grounds for a reversal of the judgment, the principal assignment of error relates to the asserted prejudicial misconduct on the part of plaintiff's attorney during his argument to the jury. Since we have determined that this claim is well founded, and that the conduct of plaintiff's counsel does require a reversal, we deem it unnecessary to pass upon other points raised on this appeal.

During his argument to the jury plaintiff's attorney, Mr. Boccardo, used language and arguments which he would have us accept as being merely imaginative, colorful and aggressive. We are of the opinion, however, that his conduct in numerous instances carried him outside the bounds of proper argument and into an area that can only be characterized as grossly prejudicial misconduct. Some of the more flagrant examples are set out below.

One of the primary objectives of plaintiff's counsel during his argument seems to have been to disparage the defendant and defense counsel in the eyes of the jury. To this end he told the jury, after clearly implying that defendant and its counsel had wilfully suppressed evidence and falsified an exhibit, ‘All of which shows you and gives you a taint. In other words, there is a paint brush on this case from the defense standpoint. Everything they contended for stinks. That's it—in plain language. Everything they have done. They sit up here with smiles and smirks. All they are trying to do is beat a poor kid with a leg off out of what they owe him. * * *’ He also told the jury that they had ‘seen the deceit practiced before them in this Courtroom * * *’, and had ‘seen the lack of sincerity demonstrated in this Courtroom * * *.’ He charged that the defendant's safety rules ‘were promulgated for one purpose, and that purpose is if there is an accident, to use it against the employee.’ Referring to defense counsel's argument to the jury, Mr. Boccardo stated: ‘* * * he tells you one thing, he says, the plaintiff gets nothing unless he proves negligence or law violation which helped cause his accident—that is the one thing he says that is true.’

On the question of damages he said: ‘Now I want to discuss with you the amount of money that this boy should have at your hands. Now I think that you are in an enviable position. I would like to be in the position some day of being on a jury, of having a meritorious case tried before me, of having the privilege of once seeing that an injured, crippled, handicapped amputee got what the law says he should have and not what some cheap, inconsiderate, inhumane people might think he ought to have. * * * [W]e are going to discuss the elements that you are going to compensate for if you want to do the job as jurors under your oath. If you want to disregard your oath, disregard the law, disregard the facts, you have that privilege. You can then be in the same boat as the Santa Fe—and live with yourselves the rest of your days. * * *

‘Where it is coming from, how it is going to be paid, who is going to pay it, it is no concern of yours, you see. I say this so emphatically because in my blood, in my veins runs something in this type of case that just nauseates me when I think of the inhumanity of men to men sometimes; this lack of realization of the dignity of man.’

We have quoted the foregoing excerpts at length to illustrate the method of attack pursued by Mr. Boccardo. In doing so it becomes obvious that the inflammatory language employed was designed to arouse the passions and prejudices of the jury against the defendant and its counsel, and was therefore a factor in denying defendant a fair and impartial trial.

It was, of course, highly improper for counsel to try to convey to the jury the impression that defendant and defense counsel were attempting to conceal or suppress facts. References to the ‘taint’ and the ‘paint brush’ on defendant's case, followed by the assertions that ‘Everything they contended for stinks'; that defendant was guilty of deceit and insincerity; and that certain defense witnesses had perjured themselves, were patent attempts to establish bad faith on the part of the defendant. As was said by the court in Chicago & N. W. Ry. Co. v. Kelly, 8 Cir., 84 F.2d 569, at 576: ‘There is a vast difference between a defense which is without merit, but interposed in good faith, and a fraudulent or ‘trumped up’ defense. There was nothing in the record to justify an argument that the defendant had fabricated testimony or that it did not sincerely believe that the accident happened in the manner its evidence tended to prove.' To the same effect, see: F. W. Woolworth Co. v. Wilson, 5 Cir., 74 F.2d 439, 442, 98 A.L.R. 681; Missouri-K.-T. R. Co. of Texas v. Ridgway, 8 Cir., 191 F.2d 363, 29 A.L.R.2d 984. In Keena v. United Railroads, 197 Cal. 148, 239 P. 1061, a similar accusation evoked from our Supreme Court the following comment which appears pertinent to the instant situation: ‘It is altogether too evident that the purpose of the accusation that evidence had been willfully suppressed by the defendant was none other than to bolster up a weak case by creating a prejudice against the defendant in the minds of the members of the jury. Such means of winning a lawsuit cannot be commended or receive recognition and indorsement by this court, * * *.’ (197 Cal. pages 159–160, 239 P. p. 1065.)

It was also misconduct for counsel to make the numerous and vituperative charges implying that defendant and its counsel were calloused and inhumane, and without regard for the welfare of its employees. The remarks that ‘all they are trying to do is beat a poor kid with his leg off out of what they owe him’; that the jury should award more than ‘what some cheap, inconsiderate inhumane people might think he ought to have’; and the charge that defendant's safety rules ‘were promulgated for one purpose, and that purpose is if there is an accident, to use it against the employee’ are without any support in the record and could only have been designed to unjustly prejudice the defendant in the eyes of the jurors. Such language was improper and constituted misconduct. (Jonte v. Key System, 89 Cal.App.2d 654, 658, 201 P.2d 562; Deibler v. Wright, 119 Cal.App. 277, 282–283, 6 P.2d 344.)

In addition to the language of Mr. Boccardo already quoted, he indulged in these further appeals to the emotions and sympathies of the jurors: ‘I am talking to you will this fundamental premise: I believe you to be human beings possessed of every human emotion that a human being possesses. I don't believe you are sadists. I don't believe you want to look for some reason why you are not going to give Mr. Horn what he is entitled to because on the contrary I think you are going to look upon it as desirous of doing all that you can do under your power as a human being possessed of the milk of human kindness to rectify what has happened to one of the finest young men it has been my privilege to know.’ In F. W. Woolworth Co. v. Wilson, 74 F.2d 439, 443, the court pointed out: ‘Sympathy for suffering and indignation at wrong are worthy sentiments, but they are not safe visitors in the courtroom, for they may blind the eyes of Justice. They may not enter the jury box, nor be heard on the witness stand, nor speak too loudly through the voice of counsel. In judicial inquiry the cold clear truth is to be sought and dispassionately analyzed under the colorless lenses of the law.’

Plaintiff's counsel did not restrict his appeals to the emotions of hate and sympathy, but also included the element of horror. Thus, without any bearing on the issues before the jury, he told them: ‘In the old days of medicine, there is an interesting book that I have been reading recently, there was no anesthesia. They cut off a piece of a man's body—pulled out his tongue and put pincers on it and cut off a piece—no anesthetic; they had nothing; the blood squirted; they would take a big hot iron and sear it on there—sear it until the man yelled and screamed, and the agony was fantastic.’ Such language seems to have been calculated to horrify and shock the jurors, undoubtedly with the hope that some of the shock and horror would be transferred to the injury sustained by plaintiff.

The following additional excerpts relating to the computation of damages clearly show another type of improper argument indulged in by plaintiff's counsel: ‘I say to the devil with earning capacity for the time being; let's see what it is if you are just a housewife. Take one of you ladies with no earning capacity and you got to do your housework on a wooden leg. You can't go dancing. You can't go swimming. And it's you, or somebody you love for the rest of your days, for fifty years; you don't have any trouble thinking about $150,000 as peanuts.

‘But when it is some poor wretch that doesn't belong to you, then you start thinking you are paying it out of your own pocket. You are not paying this out of your own pocket.’

‘Is there anybody on this jury who can honestly say, impartially say that they would sell their leg for one hundred thousand dollars if they never spent a minute of their time working forever more—then they are just different kind of people that I have known in the past. That is all I have to say. * * *

‘Now let us figure out the damages. Let's take every element and discuss it and appropriately fix an amount—not some amount that we want to give somebody that we hated and detested.

‘How much do we want to give somebody we love, somebody who is near and dear to us? How much would we want to get ourselves if we were in that kind of a situation? Do it honestly, without any sympathy for him or the railroad.’

‘Now, if you put that amount in the same way you would like to have it put in if you were sitting over there where Horn is, knowing all you know about this case, or if it were your son, or somebody near and dear to you, then nobody is going to have any squabbles or squawks or complaints, I am sure.’

The character of the plea contained in these quoted excerpts exemplifies the type of argument that has generally been denounced as an improper appeal to the sympathies of the jurors. As stated in Zibbell v. Southern Pac. Co., 160 Cal. 237, at page 255, 116 P. 513, at page 520: ‘It is, of course, improper for the jury to attempt to measure the damage occasioned by the injury and the sufferings attendant upon it by asking themselves what sum they would take to endure what the plaintiff has endured, and must endure. * * * ‘No rational being would change places with the injured man for an amount of gold that would fill the room of the court, yet no lawyer would contend that such is the legal measure of damages.’'

In an F.E.L.A. case similar to the instant one, the court in Chicago & N. W. Ry. Co. v. Kelly, 84 F.2d 569, reversed a judgment for the plaintiff solely on the basis of improper and prejudicial remarks of plaintiff's counsel in his closing argument. The court stated at page 576: ‘It is unnecessary, we think, to go any further with the analysis of the argument of counsel for the plaintiff. He asked the jury to place themselves in the position of the plaintiff's mother or son or husband; a position which would have disqualified them to act as jurors.’

We do not consider it necessary in the instant case to determine whether any one of the specific acts of misconduct cited above would be sufficient in itself to require a reversal. Of course we are aware that there have been in the past and may be in the future certain instances where improper language similar to some of that quoted above might not justify such a course of action. Under the circumstances of the present case, however, we believe that the cumulative effect of Mr. Boccardo's language was to create a climate of bias and prejudice based upon considerations which, as noted above, were improper and which therefore deprived defendant of a fair and impartial trial by appealing to and arousing the passions and prejudices of the jury. This conclusion leads us to the ruling of the Supreme Court in Minneapolis, St. Paul & Sault Ste. Marie Railway Co. v. Moquin, 283 U.S. 520, 521–522, 51 S.Ct. 501, 502, 75 L.Ed. 1243, where in reversing a judgment for a plaintiff in an F.E.L.A. case, the court stated: ‘In actions under the federal statute no verdict can be permitted to stand which is found to be in any degree the result of appeals to passion and prejudice. Obviously such means may be quite as effective to beget a wholly wrong verdict as to produce an excessive one. A litigant gaining a verdict thereby will not be permitted the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent.’

Plaintiff contends that defendant has waived its right to complain of Mr. Boccardo's language by failing to interrupt his argument with timely objections and requests that the jury be admonished. In the factual context of this case, this contention is not persuasive.

The improper conduct of plaintiff's counsel was called to the attention of the trial court at the close of argument when defendant sought a mistrial on the basis of such misconduct. Hence this is not a case where a party remained silent, gambling on a favorable verdict, and then voiced the complaint for the first time on appeal.

Of course not every failure to interrupt argument of counsel, object to it, and request an appropriate admonition constitutes a waiver. There are cases where, as here, the misconduct is of such character as to have produced in the minds of the jurors an effect which, in all reasonable probability, could not have been obliterated by objection and admonition. (Cote v. Rogers, 201 Cal.App.2d 138, 144, 19 Cal.Rptr. 767.) Particularly apposite here is the statement of the court in People v. George, 72 Cal.App. 124, 131, 236 P. 934, 936: ‘It is the general rule that an assignment of misconduct and a request that the court admonish the jury to disregard the objectionable statements are necessary as a foundation for a complaint of misconduct in the appellate court [citations]; the reason for the rule being, as stated, that the trial court may be given an opportunity to prevent by suitable instruction the harmful effect on the minds of the jury. Where, however, the record fairly shows—as we think it does in this case—that the acts complained of are of such a character as to have produced an effect which, as a reasonable probability, could not have been obviated by any instructions to the jury, the absence of such assignment and request will not preclude the defendant from raising the point on appeal [citations]; and, according to the decisions cited, supra, and to the views of the court in People v. Frank [71 Cal.App. 575] 236 P. 189, such cases furnish ground for reversal; and where it fairly appears, as here, all the evidence considered, that the irregularities complained of in all probability largely influenced the jury in arriving at their verdict * * *, such result is a miscarriage of justice.’

The judgment is reversed.

FOX, Presiding Justice.

HERNDON and ROTH, JJ., concur.

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