{ "id": 1481871, "name": "Tri-State Transit Company of Louisiana, Inc., v. Westbrook", "name_abbreviation": "Tri-State Transit Co. v. Westbrook", "decision_date": "1944-05-15", "docket_number": "4-7339", "first_page": "270", "last_page": "281", "citations": [ { "type": "official", "cite": "207 Ark. 270" }, { "type": "parallel", "cite": "180 S.W.2d 121" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "217 S. W. 485", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "141 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1593010 ], "opinion_index": 0, "case_paths": [ "/ark/141/0442-01" ] }, { "cite": "245 S. W. 805", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "156 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358468 ], "opinion_index": 0, "case_paths": [ "/ark/156/0094-01" ] }, { "cite": "135 N. W. 991", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "117 Minn. 306", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 183999 ], "opinion_index": 0, "case_paths": [ "/minn/117/0306-01" ] }, { "cite": "111 S. W. 1139", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "213 Mo. 340", "category": "reporters:state", "reporter": "Mo.", "opinion_index": 0 }, { "cite": "46 L. R. A. 641", "category": "reporters:federal", "reporter": "L.R.A.", "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "127 Am. St. Rep. 606", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "18 L. R. A., N. S. 321", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "16 S. W. 408", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "105 Mo. 634", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 463724 ], "opinion_index": 0, "case_paths": [ "/mo/105/0634-01" ] }, { "cite": "36 N. E. 99", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "148 Ill. 440", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3060244 ], "opinion_index": 0, "case_paths": [ "/ill/148/0440-01" ] }, { "cite": "64 Mo. 591", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 968475 ], "opinion_index": 0, "case_paths": [ "/mo/64/0591-01" ] }, { "cite": "43 Pac. 709", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "17 Mont. 510", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4372688 ], "opinion_index": 0, "case_paths": [ "/mont/17/0510-01" ] }, { "cite": "10 Phila. 189", "category": "reporters:state", "reporter": "Phila.", "opinion_index": 0 }, { "cite": "26 S. W. 209", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "170 S. W. 620", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "161 Ky. 257", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4431466 ], "opinion_index": 0, "case_paths": [ "/ky/161/0257-01" ] }, { "cite": "3 N. E. 2d 65", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "210 Ind. 380", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1528592 ], "opinion_index": 0, "case_paths": [ "/ind/210/0380-01" ] }, { "cite": "120 S. E. 539", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "156 Ga. 880", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 105369 ], "opinion_index": 0, "case_paths": [ "/ga/156/0880-01" ] }, { "cite": "132 A. L. R. 675", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "30 N. E. 2d 465", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "284 N. Y. 182", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2043830 ], "opinion_index": 0, "case_paths": [ "/ny/284/0182-01" ] }, { "cite": "18 N. E. 817", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "126 Ill. 150", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5405454 ], "opinion_index": 0, "case_paths": [ "/ill/126/0150-01" ] }, { "cite": "180 S. W. 502", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "121 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559420 ], "opinion_index": 0, "case_paths": [ "/ark/121/0244-01" ] }, { "cite": "96 S. W. 126", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "80 Ark. 23", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1491245 ], "opinion_index": 0, "case_paths": [ "/ark/80/0023-01" ] }, { "cite": "119 S. W. 665", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "90 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513818 ], "opinion_index": 0, "case_paths": [ "/ark/90/0398-01" ] }, { "cite": "195 S. W. 399", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "129 Ark. 18", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580498 ], "opinion_index": 0, "case_paths": [ "/ark/129/0018-01" ] }, { "cite": "107 S. W. 2d 546", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "opinion_index": 0 }, { "cite": "194 Ark. 490", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722060 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/194/0490-01" ] }, { "cite": "112 S. W. 2d 634", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 321", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720351 ], "opinion_index": 0, "case_paths": [ "/ark/195/0321-01" ] }, { "cite": "32 S. W. 497", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "61 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902303 ], "opinion_index": 0, "case_paths": [ "/ark/61/0130-01" ] }, { "cite": "24 S. W. 885", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "58 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329143 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/58/0353-01" ] }, { "cite": "85 S. W. 428", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "74 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720049 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/74/0256-01" ] }, { "cite": "119 S. W. 2d 913", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "196 Ark. 746", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1462389 ], "opinion_index": 0, "case_paths": [ "/ark/196/0746-01" ] }, { "cite": "68 S. W. 676", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "70 Ark. 420", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509537 ], "opinion_index": 0, "case_paths": [ "/ark/70/0420-01" ] }, { "cite": "16 Ark. 534", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725776 ], "opinion_index": 0, "case_paths": [ "/ark/16/0534-01" ] } ], "analysis": { "cardinality": 1033, "char_count": 21445, "ocr_confidence": 0.507, "pagerank": { "raw": 6.665651525889828e-08, "percentile": 0.4058306102015986 }, "sha256": "d956a9e3bb91d7b0ee908f422371d384193af395179d5ef0875586baa59b7b82", "simhash": "1:b82c6d70f244ad83", "word_count": 3753 }, "last_updated": "2023-07-14T21:46:39.394631+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mr. Justice Robins dissents." ], "parties": [ "Tri-State Transit Company of Louisiana, Inc., v. Westbrook." ], "opinions": [ { "text": "Knox, J.\nAppellee, a Negro resident and citizen of Saline county, Arkansas, being in Monroe, Louisiana, and desiring to go to Shreveport, purchased a ticket for passage on appellants\u2019 through bus operating between Meridian, Miss., and Shreveport, La., which was due to leave Monroe about 2 o\u2019clock a. m., January 20, 1943. While the driver of the bus was in the station attending to certain duties, appellee boarded the bus and took a seat thereon. The bus driver testified that the bus had been crowded all the way from Meridian and some passengers had been forced to stand, some twenty-five passengers were going on through, most of whom had gotten off the bus at Monroe; that it was the practice of the company to hold for their reoccupancy the seats of through passengers who temporarily left the bus at any station, and to tliis end additional passengers were not taken on the bns until the through passengers had returned thereto, and then the new passengers were permitted to board the bus, first surrendering their tickets to, and taking a receipt from the driver. When the driver of the bus returned and found that appellee had boarded it in his absence he directed that he get off and await his proper turn to reboard.\nThe testimony as to what took place immediately afterwards is in conflict.\nAppellee was the sole witness testifying in his behalf as to circumstances of the rencounter, and his testimony tends to show that he was sober and behaving himself properly at the time; that he got up in obedience to the driver\u2019s order and started off the bus; that the driver stepped off in front of him and as he stepped off the bus the driver hit him over the head with a crank without any provocation or warning whatever, knocked him to the pavement and drove off and left him lying there.\nSix witnesses, the bus driver and five passengers, testified on behalf of appellants and their testimony tends to show that appellee was drunk at the' time, and cursed the driver when he was ordered off the bus; that he got off the bus and hit the driver with his fist, and that the driver in self-defense struck at him with the crank, which appellee knocked out of his hand; that while they were fighting, an.army sergeant standing nearby picked up the crank and struck appellee over the head with it 'several times' and ended the fight.\nIn this action, the jury awarded appellee $500 as compensatory damages and also $500 as punitive damages. While several assignments of error are set out in the motion for new trial, only two points are- argued,* to-wit: (1) error in admission of evidence on cross-examination, and (2) improper argument on the part of counsel which was not corrected by. proper and suitable action on the part of the trial court. These matters are set out in full in assignments 8, 30 and 11 of the motion for new trial as follows :\n\u201c8. Because the court erred in admitting, over the objections and exceptions of the defendants, the following testimony of the witness, Charles Musick, on cross-examination: \u2018Mr. Coffelt: You fellows in Louisiana knock them (Negroes) in the head when you want to, don\u2019t you? Mr. Gregory: We object to that. Mr. Coffelt : That is what you do \u2014 knock them in the head when you want to and get by with it? A. No. Q. Have you heard of it being done? The Court: Go on. Mr. Gregory: Save ortr exceptions. Mr. Coffelt: Isn\u2019t that the practice in that country when'you deal with Negroes\u2014 when they get out of line you knock hell out of them? A. Yes, when they get out of line. Q. And that is what you did in this case \u2014 took the law in your own hands? A. I did not. \u2019 \u2019 \u2019\n\u201c10. Because the court erred in failing to admonish counsel for plaintiff against making improper and prejudicial statements, after being requested to do so by counsel for defendants, such request resulting from the following statement made by plaintiff\u2019s counsel during the opening argument to the jury, all of which was over the objections and exceptions of the defendants: \u2018Mr. Coffelt: Now about these depositions that were framed. Mr. Gregory: I object to that line of argument, and ask the court to tell the jury not to consider what Mr. Coffelt has said and also to admonish him not to make such improper statements. The Court: The jury should only consider the evidence before you.\u2019 \u201d\n\u201c11. Because the court erred in permitting and allowing plaintiff\u2019s counsel to state, in his closing argument to the jury, the following, which the court refused to withdraw from the jury-\u2019s'consideration at the request of the defendants, all of which was over the objections and exceptions of the defendants: \u2018Mr. Coffelt: I don\u2019t know whether the jury knows much about court procedure or not. They accuse this Negro of perjury. I want to tell you that they have a right to investigate this Negro after this trial the same as before and to check upon every word of his testimony, and in the event you .should find for him in this case, and it is later found that he has perjured himself in any instance, the defendant in this case has fifteen days to file a motion for a new trial and they can set up any perjured testimony in that motion they want to. Mr. Gregory: I object to that, your honor, because that kind of argument is improper and highly prejudicial and it hasn\u2019t got anything to do. with the issues to be tried by this jury. Mr. Coffelt: Your honor, they accuse this Negro of perjury. The Court: Objection overruled. Mr. Gregory: Save my exceptions. Mr. Coffelt: Yes, lady and gentlemen of the jury, the defendant has ample opportunity after a case is decided the same as before to investigate the plaintiff and if they can prove he has been guilty of perjury, they have that right and they know it, and they can set it up in their motion for a new trial and prove It, in the event you should find for the plaintiff, and they have fifteen days to do so, and to ask this court for a new trial on that ground.. I say to you this Negro has told the truth all the way through, and as I told you at the outset of this trial it is up to you to say where the truth lies. If you believe he has told the truth, find for him. If you don\u2019t believe he has told the truth, find against him. That\u2019s the issue for you to decide.\u2019 \u201d\nThe purpose of the questions propounded to Musick, the bus driver above quoted, was to disclose whether the people of his community generally accepted the doctrine, to which he himself also subscribed,, that quick corporal punishment should be administered to Negroes \u201cwhen they get out of line. \u2019 \u2019 It was within the discretion of the trial court to allow such cross-examination to test the credibility of the witness, especially so since he testified that although the Negro applied to him a vile epithet he nevertheless took no action until after he was assaulted. Hofler v. State, 16 Ark. 534; Hughes v. State, 70 Ark. 420, 68 S. W. 676; Carter v. State, 196 Ark. 746, 119 S. W. 2d 913.\nThe argument of counsel presents a more serious question.\nIt has been stated generally that \u201cthe control of argument is in the sound judicial discretion of the trial judge\u201d and \u201creversal rests upon (liis) abuse of discretion ... in not confining the argument within its legitimate channels.\u201d Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428.\nIn his work \u201cJudicial Discretion of Trial Courts,\u201d Mr. Bowers, after pointing out that the term \u201cjudicial discretion\u201d is in fact a \u201cmisnomer\u201d and that its companion term \u201cabuse of discretion\u201d is \u201cunhappily phrased\u201d admits that such terms have \u201cbecome so deeply imbedded in the legal nomenclature that any attempt to dislodge them would be futile.\u201d Later the same author says: \u201cWhile trial courts are clothed with considerable discretion in controlling the arguments, little > hesitancy is shown by appellate courts in reviewing the action taken below, and reversals are ordered, seemingly with alacrity, when it has been made to appear that prejudice resulted from improper argument of counsel.\u201d Bowers \u2014 Judicial Discretion of Trial Courts, \u00a7 283, p. 318.\nThe text above quoted is in conformity with pronouncements of this court. In the early case of Vaughan v. State, 58 Ark. 353, 24 S. W. 885, the court, although stating that control of argument was within the sound discretion of the trial court, nevertheless declared that the exercise of that discretion was subject to review, and added \u201c'Whenever it occurs to us that any prejudice has most likely resulted therefrom (improper argument) we shall not hesitate to reverse on that account.\u201d\nIn the case of Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428, it was said: \u201c. . . . it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issue; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted'argument; but that discretion is not-an arbitrary one, but that sound judicial discretion the exercise of which is a matter of re: view. .' . In the final analysis, the reversal rests upon an undue advantage having been secured by argument which has worked a prejudice to the losing party not warranted by the law and facts of the case.\u201d\nIt is contended that the argument of counsel here was improper, and the action of the court ineffective to eliminate the sinister effect thereof in three particulars as follows: (1) counsel\u2019s reference to depositions of ap.pellants\u2019 witnesses having been framed, followed by the court\u2019s statement \u201cThe jury should only consider the evidence before you\u201d; (2) counsel\u2019s statement \u201cI say to you this Negro has told the truth all the way through\u201d; and (8) that the general effect of counsel\u2019s closing argument was an invitation to the jury to evade their responsibility under the belief that in its final analysis it was for the trial court on the motion for new trial to determine whether appellant had sworn falsely.\nIn the case of Kansas City, etc., Rd. Co. v. Sokal, 61 Ark. 130, 32 S. W. 497, Mr. Justice Battle, speaking for the court, said: \u201cExcept as to those facts- of which courts take .judicial notice, juries should consider only the evidence adduced. Arguments by counsel of the evidence adduced and the law as given by the court are allowed only to aid them in the discharge of their duty. .Within these limits counsel may present their client\u2019s case in the most favorable light they can. When they go beyond them and undertake to supply the deficiencies of their client\u2019s case by assertions as to facts, which are unsupported by the evidence, or by appeals to prejudices foreign to the case, they travel outside of their duty and right, and abuse the privilege of addressing the jury by using it for a purpose it was never intended to accomplish; for such assertions or appeals can serve no purpose except to mislead the jury and defeat the ends of the law in requiring them to confine .their consideration to the evidence adduced and the law embodied in the instructions of the court.\u201d See, also, Anderson v. Erberich, 195 Ark. 321, 112 S. W. 2d 634; Mo. Pac. R. Co. v. Fore man, 194 Ark. 490, 107 S. W. 2d 546; Hall v. Jones, 129 Ark. 18, 195 S. W. 399; St. L. I. M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S. W. 665, 17 Aim. Cas. 1.\nOf appellants\u2019 six witnesses, the bus driver alone appeared and testified in person at the trial. The testimony of the other five, all of whom were passengers on the bus at the time of the difficulty, gave their testimony by means of depositions. Counsel for appellee in' his opening argument said \"Now about these depositions that were framed. \u2019 \u2019\nOf late years the word \"framed,\u201d when used to describe evidence, has come to be generally accepted as implying that wilful perjurers, suborned thereto by, and acting in conspiracy with, parties in interest to litigation are swearing or have sworn to matters which have no basis in fact. (Webster\u2019s New International Dictionary, 1935.)\nThere is nothing in the record to support an inference that these \"depositions were framed.\u201d In the case of Herman Kahn Co. v. A. T. Bowden & Co., 80 Ark. 23, 96 S. W. 126, 10 Ann. Cas. 132, it was held that a statement by counsel in argument that two witnesses were \"liars and scoundrels\u201d being unsupported by evidence was improper and prejudicial.\nThe following statement is found in Hyatt on Trials: \"Without justifying evidence, asserting or implying that a particular witness on the opposite side had been suborned to commit perjury is misconduct (which) cannot be deemed harmless merely because the evidence was conflicting . . . and the verdict was moderate.\u201d 2 Hyatt on Trials 1028. See, also, 1 Thompson on Trials 821; 2 R. C. L. 413; 64 C. J. 273 & 274, particularly note \u201cf,\u201d p.274.\nIt necessarily follows from what has been said that the charge that the depositions were \"framed\u2019\u2019 constituted improper argument. \u2022\nWe reserve for later discussion questions (1) as to whether such argument, if standing alone and unrebuked by the court, would require a reversal; and (2) whether action, which trial court did in fact take, was sufficient to cure the error.\nIn the course of his closing argument counsel for appellee said: \u201cI say to you this Negro has told the truth all the way through . . . \u201d\nIn the case of Western Union Tel. Co. v. Furlow, 121 Ark. 244, 180 S. W. 502, it was held that the action of the trial court in permitting counsel to bolster up the testimony of a witness by asserting in argument that he had known the witness from childhood, and that the witness\u2019 veracity was beyond question, constituted error.\nAgain we quote from Hyatt on Trials as follows: \u201cNext to assailing the character and motives of adverse witnesses, some advocates seem to think that their purposes are best attained by' crediting their own witnesses with as many virtues as faults are debited to those of the opposite side. The one kind of argument is as improper as the other, . . .\u201d Hyatt on Trials 1606.\nCounsel for appellants very forcefully contend that the purpose and effect of the entire above quoted language employed by counsel in his closing argument was to create in the minds of the jury the belief that in the final analysis the question of whether appellee\u2019s testimony was true or false would be determined by the trial court upon a motion for new trial, and that their decision with respect thereto would not be final. They argue that counsel\u2019s remarks sought to create the impression that if the jury wronged appellants by finding in favor of appellee such wrong could and would be righted by the trial court at the hearing on the motion for new trial, and that such argument was calculated to induce the jury to disregard its own responsibility to find the truth from the evidence and reflect the same in its verdict.\nAt 2 E. C. L., p. 418 \u2014 Arguments of Counsel, \u00a7 15, it is said: \u2018 \u2018 Statements that the higher court has the power to review the findings of th\u00e9 jury on the weight of evidence are calculated to induce the jury to disregard their responsibility, and are improper. Such error ordinarily will be overcome where the court admonishes the jury to disr\u00e9gard the remarks and also directs counsel to refrain from indulging in them.\u201d\nNearly all of the cases cited in support of the text and revealed by further examination were.criminal cases and for the most part deal with statements made by prosecuting attorneys with respect to the right of appeal and the power of the appellate court to review the weight of the evidence. See McDonald v. People, 126 Ill. 150, 18 N. E. 817, 9 A. S. R. 547; People v. Johnson, 284 N. Y. 182, 30 N. E. 2d 465, 132 A. L. R. 675; Hammond v. State, 156 Ga. 880, 120 S. E. 539; Kelley v. State, 210 Ind. 380, 3 N. E. 2d 65; Hudson v. Commonwealth, 161 Ky. 257, 170 S. W. 620; Crow v. State, 33 Tex. Crim. R. 264, 26 S. W. 209; Commonwealth v. Smith, 10 Phila. 189; State v. Biggerstaff, 17 Mont. 510 43 Pac. 709; State v. Kring, 64 Mo. 591; Boone v. People, 148 Ill. 440, 36 N. E. 99; State v. Young, 105 Mo. 634, 16 S. W. 408, 18 L. R. A., N. S. 321, 127 Am. St. Rep. 606; see, also, Note 46 L. R. A. 641, 670; Neff v. Cameron, 213 Mo. 340, 111 S. W. 1139; Landro v. Great Northern R. Co., 117 Minn. 306, 135 N. W. 991, Ann. Cas. 1923D, 244.\nSimilar arguments have been considered by this court on at least two occasions: Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Southern, etc., Min. Co. v. Rice, 156 Ark. 94, 245 S. W. 805. In each case the court specifically declared that such argument was \u201cimproper,\u201d but failed to reverse on that account, in the Vaughan case because (1) it doubted that the jury had been influenced, especially so since (2) the court had admonished them to disregard it, and, also, in the Rice case because the improper argument was an appeal for a large verdict, and the moderate amount allowed by the jury showed that no prejudice had resulted.\nIt is clear, therefore, that the argument of counsel was improper in all three of the particulars alleged. In determining whether improper argument requires the setting aside of a verdict many things should be considered, among which are, the character of the argument, the circumstances under which it was made, the effort made by counsel and the court, or either of them, to remove the harmful effect thereof from the minds of the jury, the apparent effect which such argument had on the verdict, and many'other things. As was said in K. C. S. Ry. Co. v. Murphy, supra: \u201cIn the final analysis the reversal rests upon an undue advantage having been secured by (such) argument ...\u201d\nWhen objection was made to the opening argument the court, addressing them, said \u201cthe jury should only, consider the evidence before you.\u201d A similar charge in Mo. Pac. R. Co. v. Foreman, 194 Ark. 490, 107 S. W. 2d 546, was held ineffectual to remove the prejudice resulting from the action of an attorney in emphatically stating a fact having no foundation in the record.\nThe court took no action whatever towards removing the harmful effect of the improper statements made by counsel in his closing argument, but on the contrary overruled appellants\u2019 objection made thereto. \u201cThus,\u201d as was said in Doran v. State, 141 Ark. 442, 217 S. W. 485, \u201cthe jury were given to understand by the judge himself, the ruling genius at the trial, that the arguments were not improper.\u201d\nIt is to be remembered that this action was being tried in Hot Spring county, the adjoining county to the one in which plaintiff and his counsel resided. The witnesses for appellant, although six in number, were all nonresidents of Arkansas'. The plaintiff alone testified in his own behalf. He probably was no better known to the jury than were the\u2019 out of state witnesses produced by the appellants, but some members thereof doubtless knew counsel in person or by reputation. The question naturally arose in the mind of appellee\u2019s counsel how best to get the jury to accept the uncorroborated testimony of his client, in the face of the contrary testimony of six unimpeached witnesses, who were guilty of no greater crime than being nonresidents of Arkansas. Evidently he decided to throw into the scales of justice charges of wrongdoing, suggestions of fact, and assurances of verity, vouched for only by his own unsworn statements. So he sought to discredit the testimony of the five witnesses, who had given their testimony by depositions, by making the utterly unwarranted statement that such \u201cdepositions were framed\u201d; then to bolster up the uncorroborated testimony of his client he gave the jury his personal assurance that appellee had \u201ctold the truth all the way through,\u201d . . . and then to clinch the matter he suggested, without actually so saying, that the court at the hearing on the motion for new trial could and would correct any erroneous finding which they might make. These do not appear to have been mere statements inadvertently made in the heat of trial. They appear to have been the result of a careful plan, made for the purpose of bolstering up appellee\u2019s uncorroborated testimony. Such design is admitted on page 15 of appellee\u2019s brief, in this language: \u201cIt may be that counsel should not have attempted to strengthen the force of appellee\u2019s testimony by reference to appellants\u2019 right to file a motion for new trial. . .\u201d\nPerhaps any one of these \u201cimproper\u201d statements would not have been sufficient to require reversal, but when we consider their combined effect, we cannot escape the conclusion that counsel for appellee accomplished his purpose. The jury were persuaded to accept the uncorroborated testimony of appellee as against the testimony of six unimpeaclied witnesses. \u25a0 The repeated improper argument muat have been the effective agency which produced this result. Since the argument was improper, and appellee has obtained an undue advantage thereby, the judgment will be reversed and the cause remanded for a new trial. It is so ordered.\nMr. Justice Robins dissents.", "type": "majority", "author": "Knox, J." } ], "attorneys": [ "Bridges, Bridges, Young & Gregory, for appellant.", "Coffelt & Kirby, for appellee." ], "corrections": "", "head_matter": "Tri-State Transit Company of Louisiana, Inc., v. Westbrook.\n4-7339\n180 S. W. 2d 121\nOpinion delivered May 15, 1944.\nBridges, Bridges, Young & Gregory, for appellant.\nCoffelt & Kirby, for appellee." }, "file_name": "0270-01", "first_page_order": 308, "last_page_order": 319 }