Crutcher v. Noel

201 S.E.2d 855 (1974)

284 N.C. 568

Josephine B. CRUTCHER v. R. David NOEL.

No. 16.

Supreme Court of North Carolina.

January 25, 1974.

*856 Yarborough, Blanchard, Tucker & Denson by Charles F. Blanchard, Raleigh, for plaintiff appellant.

Smith, Anderson, Blount & Mitchell by John H. Anderson and C. Ernest Simons, Jr., Raleigh, Royster & Royster by Stephen S. Royster, Oxford, for defendant appellee.

*857 BRANCH, Justice.

The sole question for decision is presented by the following assignment of error:

"The Court erred in permitting counsel for defendant Noel to argue to the jury that doctors who were not called as witnesses by the defendant would have testified that Dr. Noel performed the operation on Mrs. Crutcher correctly and that nurses would have told Dr. Finch that the bandage was on too tight, as set forth in Plaintiff's Exception Numbers 5, 6 and 7."

During the jury arguments, counsel for plaintiff argued that defendant indicated to plaintiff and the court during jury selection, that he probably would call as witnesses Dr. Frank Warren Clippinger, Jr., Dr. John Glasson, Dr. T. B. Dameron, Dr. Don Pruitt, Dr. George Paschal, Dr. James Newsome, Dr. George Johnson, Dr. Ralph Coonrad, Dr. John W. Watson, Dr. Richard Taylor, Dr. R. L. Noblin, and Dr. Harry Fisk; and that he had failed to call any of those persons to testify in his behalf. Plaintiff's counsel further argued to the jury that if these named doctors would have been able to give testimony favorable to Dr. Noel's case, then certainly Dr. Noel would have called one or more of them as witnesses in his behalf.

In response to this argument, defendant's counsel thereafter argued to the jury that there was no use in the defendant presenting ten witnesses before the jury to say that Dr. Noel performed this operation correctly. At that time, plaintiff's counsel objected to this argument. The objection was overruled.

Defendant's counsel continued his argument saying, "I don't know why Mr. Blanchard should object to my mentioning the names of possible witnesses when Mr. Blanchard read the names of those witnesses to the jury. Why should we get them here just to say Dr. Noel did the operation correctly?" Defendant's counsel subsequently argued that one-half to three-quarters of the matters and things originally alleged by the plaintiff as specifications of negligence were no longer then in the lawsuit, and that Dr. Noel would only be bringing those witnesses here to say what he, himself, had already said. (Emphasis ours.) In regard to the nurses at Granville Hospital, Inc., defendant's counsel argued: "Don't you know that the nurses at the Hospital would have told Dr. Finch or Dr. Noel that the bandage was too tight, don't you know that?"

During the latter part of this argument, plaintiff's counsel again objected and his objection was again overruled.

The general rule is that counsel may argue all the evidence to the jury, with such inferences as may be drawn therefrom; but he may not "travel outside of the record" and inject into his argument facts of his own knowledge or other facts not included in the evidence. Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525; State v. Little, 228 N.C. 417, 45 S.E.2d 542; and Perry v. Western North Carolina R. Co., 128 N.C. 471, 39 S.E. 27.

It is conceded, however, that there are occasions when counsel, in his remarks to the jury, may invite responsive or retaliatory argument by opposing counsel. State v. Knotts, 168 N.C. 173, 83 S.E. 972; People v. Izzo, 14 Ill. 2d 203, 151 N.E.2d 329; Bank v. Lancaster, 100 S.W.2d 1029 (Tex.Civ.App.1936). Even so, such invitation does not grant opposing counsel carte blanche license to travel outside the record or beyond the bounds of proper response and retaliation.

When counsel makes an improper argument, it is the duty of the trial judge, upon objection or ex mero motu, to correct the transgression by clear instructions. If timely done, such action will often remove the prejudicial effect of improper argument. Cuthrell v. Greene, supra.

Here, the trial judge overruled plaintiff's objection to the challenged argument *858 and thereby highlighted its effect by placing the stamp of judicial approval upon the argument.

In this case, the weight of the medical testimony was the paramount issue. Appellee's counsel is a prominent, persuasive and respected lawyer. His statement, although clearly made in the heat of battle and without thought of impropriety, to the effect that twelve doctors, listed as his witnesses, would have testified to the same thing that his client had testified to, offered facts outside the record which effectively buttressed his client's testimony on this crucial issue without granting plaintiff the guaranteed rights of confrontation and cross-examination. We think that this argument departed from the record with such force that it weighted the verdict in defendant's favor.

The decision of the Court of Appeals is reversed, and this cause is remanded to that Court for entry by it of a Judgment granting a new trial in the cause.

Reversed and Remanded.