When an appellate court reverses a judgment because counsel for one of the parties makes a statement in his argument before the jury which is considered to have diverted the attention of the jury to the consideration of matters which do not lie within the scope of the evidence on which the jury is sworn to try the case, it is because, first: the statement as made is of such a nature as to have that effect; and secondly, that the trial judge, upon proper motion made to instruct the jury to disregard the same, abuses his discretion by either overruling the motion or failing to give such instruction to the jury as would effectively eliminate from their consideration the subject matter of such statement.
The question whether the objectionable statement in the circumstances in which it was made is of such character as to unduly influence the jury while considering their verdict is a matter addressed to the discretion of the trial judge subject only to review by an appellate court when it is made to appear that the trial judge abused that discretion.
The reasonable discretion in such matter vested in the trial judge arises from the very nature of the proceedings in which the judge sees the witnesses, hears their testimony, observes their demeanor and listens to the argument of counsel. If a statement is made in argument which is not justified by any fair and reasonable interpretation of the evidence but is a gratuitous statement injecting into the controversy matter which is irrelevant but nevertheless prejudicial in character in that it is designed to arouse the prejudice or antagonism of the jury against the opposite party to the controversy it may be said to be an abuse of legitimate argument and an unfair advantage to take against the adverse party.
In order for an appellate court to determine whether such an unjustifiable statement has been made in argument or *Page 829 whether the trial judge abused his discretion in refusing by his charge to effectively remove such statement from consideration by the jury, it is necessary that the appellate court should have before it all the circumstances out of which the questionable statement arose because the discretion of the trial judge necessarily rests upon the circumstances or incidents occurring at the trial which may reasonably be considered as being the occasion for the questionable statement. Therefore the appellate court should consider the objectionable statement in the light of the circumstances in which it was made that it might determine whether the complaining party had made it to appear that the trial judge had abused his discretion in refusing, upon a proper motion, to eliminate the questionable statement from consideration by the jury.
Now the record in this case discloses that the objectionable statement, as complained of in the complete assignments of error, was as follows: "Not so long ago Mr. Murrell (defendant's counsel) got a verdict of $45,000.00 in this court in an alienation suit." It is contended by counsel for plaintiff in error that such statement "constituted gross misconduct, was improper and highly prejudicial to the defendant, and was done solely for the purpose of poisoning the minds of the jury and to place in said Jurors' minds an amount of damages allowed in another case which plaintiff's counsel well knew was not a case similar to the case at bar, and even if said mentioned case had been a similar case, it would have been highly prejudicial to the defendant for plaintiff's counsel to make such remarks in his argument to the jury."
Now the record discloses that while the plaintiff's counsel did make such statement it was by way of retort to an equally prejudicial and improper argument by defendant's counsel in which he said: *Page 830
"Suits for alienation of affection were held in disrepute, and that many of the states had, by law, prohibited the maintenance of such suits. That such suits were, in any instance, only a species of blackmail; that the suit in question was scandalous and disgraceful and nothing more than an attempt on the part of the plaintiff to commercialize on the body of his wife. That the plaintiff, in the attitude which he had taken in maintaining this suit and thereby attempting to commercialize on the body of his wife, was nothing more than a glorified pimp."
In reply to that statement plaintiff's counsel retorted by the statement above referred to as objectionable and made the basis of the first assignment of error.
The statement made by defendant's counsel, that actions of this character are held in disrepute and that the plaintiff sought in this prosecution to commercialize on the body of his wife and thereby became a mere "glorified pimp," was not justified either in point of law or from the evidence which was adduced before the jury in this case, according to which they were sworn to try the issues joined. The statement apparently was designed to disclose the attorney's attitude toward such character of cases as actions for damages for the alienation of affection as being immoral, disreputable and repugnant to the normal sense of honor and masculine virility of jurors who under the law are chosen because they are good men and true and of approved intelligence. The retort by the plaintiff's counsel was designed to impeach that moral attitude of defendant's counsel by showing that, a short time before, the same counsel had brought an action of that character and obtained a judgment in the sum of $45,000.00 against the delinquent party. The record discloses that the defendant's counsel rejoined as follows: "Explain to them that I represented the girl against her father and mother-in-law, and not a man." *Page 831
It may be true, as counsel for the defendant seems to maintain, that in the moral aspect there is one kind of action for alienation of affections when brought by a man, and another kind when brought by a wife against her father-in-law and mother-in-law for the alienation of her husband's affections. However that may be, there seems to have been no occasion whatsoever for injecting into this case either by provocation, reply or rejoinder the moral quality of such actions. They are lawful, have existed since the days of the common law, obtain in this State in recognition of the right of the spouse, whether male or female, to seek damages for the tort committed by a third person in alienating the other's affection.
Counsel for the defendant moved the court, according to the bill of exceptions, "to instruct the jury to disregard the statement about any other suit mentioned wherein a verdict of $45,000.00 was rendered, and state that such remark has nothing to do with the issues involved in this case, and they should not consider such remark."
This motion the court denied. Such denial seems to me to have been a reasonable exercise of the court's discretion, first: because defendant's counsel committed the first error which provoked the retort from plaintiff's counsel; secondly, that the retort was justified in argument to attack the sincerity of defendant's counsel's protest against this character of action by showing that when he was differently situated with reference to the parties in another action he seemed to have had no such strict views as to the moral quality of such actions and thirdly, because the questionable remark in the circumstances could not have appeared in any other light to good men and true and of approved intelligence than as a verbal bout between counsel in which one sought to condemn the character of action and the other sought to show that such protest was not sincere. *Page 832
Neither do I concur in the analysis of this case as made by Mr. Justice DAVIS in so far as he sums up the conduct of the defendant as an "interpreneurship in amorous dilettantism." If it is meant by that phrase that the defendant undertook to practice lascivious indulgences with plaintiff's wife by a seductive method of his own contrivance, I am constrained to say that the learned jurist's analysis of the facts does not justify such a conclusion, and if by the quoted phrase he means to imply that sexual indulgences between a man and woman is a fine art, I submit that it is not so regarded in the lists of accomplishments in polite or even semi-polite society.
If there was any seduction in this case, the record seems to disclose that it was of a Potiphar's wife character in which the defendant exhibited less of restraint than Joseph, and more of the weakness of the average man. Or it may have been a seduction of another type, such as that unintentionally practiced by Bath-sheba, the wife of Uriah the Hittite, upon David, whose amorous susceptibilities seem to have been of even greater degree than that of the defendant.
The exhibits in this case, in the form of pictures taken of the plaintiff's wife in a bathing suit, while not revealing a type of Venus-like voluptuousness, the defendant may nevertheless on other occasions have been attracted by her semi-concealed charms when engaged in the pleasures of the bath at Miami Beach. However that may be, I fail to discover in the record that the defendant artfully and designedly practiced salacious methods upon the plaintiff's wife to steal away her tender affections from her husband, from whom she seems to have had an estrangement sometime before she met the defendant.
While that fact does not destroy the plaintiff's right of action, the removal by the husband and wife of the golden quality of connubial bliss, which seems to be the adhesive element in the bond of matrimony, may be considered in *Page 833 estimating the amount of damages which another man inflicts upon the husband by the mere fact of the physical invasion of the husband's premises.
In this view of the case I am constrained to believe that the judgment was excessive and the fee exacted by the jury from the defendant as mitigant to the plaintiff's feelings or balm to his wounded heart was excessive by a substantial sum.