The court further stated:
'The measure of damages in this case is what was the value of the plaintiff's business claimed to have been destroyed by the defendant's illegal acts.'
There was no reason for informing the jury that whatever damages they would award would be trebled, because this is a matter solely for the court. In fact, the jury might have taken such a statement as an intimation to keep the damages at a low level, in view of the fact that the amount allowed by the jury would be multiplied by three. This would have tended to defeat the purpose of the Act of Congress.
In this connection, it must be noted that it is the practice in this jurisdiction in civil cases not to give the pleadings to the jury. The custom is otherwise in criminal cases, as the indictment is generally handed to the jury. There may be some reason for imparting the information to the jury in those districts in which it is customary to supply the pleadings to the jury in civil cases, because otherwise the jury on reading the prayer for relief might be confused by the demand for triple damages and might be perplexed by a doubt whether it was its duty to multiply the actual damages by three.
Associate counsel for the defendant has selected a single ruling on a minor question of evidence out of a great many made during the three-weeks' trial, and has urged that the court erred in excluding a certain question on cross-examination. The importance of the question is magnified out of its context, and even if its exclusion were erroneous, the error would have been harmless. The matter would not be of sufficient importance to justify a new trial, as it could not possibly have affected the outcome of the trial. Actually, however, upon further reflection the court adheres to the ruling made at the trial. The defendant called as its witness one Donald Webster, the son of Richard Webster, the President of the plaintiff corporation. A series of questions were addressed to the witness that obviously were not germane to the issues involved in this case, and whose only effect seemed to be to embarrass him. The court nevertheless permitted the interrogation to proceed for awhile, not knowing whether it might result in developing something material. Finally the question was asked whether in another proceeding in another court, the witness had not misstated something that had occurred on an interlocutory motion in this case in this court. The court excluded the question on the ground of its irrelevancy. It served no legitimate purpose and merely seemed to humiliate the witness. the court is not unmindful of the fact that under Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the witness might well have been regarded as a hostile witness and, therefore, was subject to cross-examination by defendant's counsel even though the witness was called by the defendant. Nevertheless, it must not be overlooked that in a Federal court the extent of cross-examination as to credibility is subject to the reasonable control of the court, and may not be carried to whatever extent counsel desires.
The comments of the Court of Appeals in Bracey v. United States, 79 U.S.App.D.C. 23, 27, 142 F.2d 85, 89, although directed to another aspect of the law of evidence, are equally applicable to the case at bar:
'In fact, the situation of the present case provides a good example of the necessity for permitting the trial judge to exercise considerable discretion in admitting or rejecting evidence. He observes the conduct of counsel, the reactions of the witness under examination and the resulting effect upon the jury. In other words, he is aware, as no appellate court could be, of the courtroom psychology and, hence, is in a position to determine whether particular testimony should or should not be received.'
Finally, defense counsel complains of the summing up argument to the jury made by counsel for the plaintiff, and urges that it was inflammatory. It may be observed that both parties were represented by experienced trial counsel, who are members of the local bar of high standing. Each of them, as able trial lawyers are wont to do, indulged in flights of eloquence in his summing up to the jury with considerable skill. Neither counsel interposed any objection to the summing up of his opponent, either during the speech or after its conclusion. While the fact that no objection was advanced at the time, is not necessarily fatal if a miscarriage of justice has really resulted, nevertheless, this circumstance gives rise to a mental inquiry whether the contention later made is not an after thought. Especially is this the case because the motion for a new trial was not argued by the trial counsel, although he was present in the courtroom at the time of argument, but was presented by out-of-town counsel who was associated with the trial counsel and who was admitted pro hac vice. In any event the court is of the opinion that the summation of each trial counsel was within the bounds of proper advocacy and that neither was inflammatory. Fortunately, we have not reached the stage of banning interesting and vivid oratory and confining arguments of counsel strictly to dull and prosaic remarks. The art of advocacy is not dead, although it must be confessed that at times it seems moribund. So, too, only one who has but little faith in trial by jury would really think that jurors are easily led astray by eloquence from the course charted by the evidence. The general experience of Federal trial judges is to the contrary. The effect of skillful summation of counsel is rather to silhouette or etch vital portions of the facts and the inferences to be drawn from them.
It would be wise to bear in mind the sage and apt remarks of Judge Goodrich of the Third Circuit, in commenting on a similar contention in Smith v. Philadelphia Transp. Co., 173 F.2d 721, 726, which are equally applicable here. He said:
'Juries are not so likely to get excited or inflamed by lawyers' talk as lawyers think they are.'
That the jury in this case reached its conclusion on the evidence and displayed keen discernment in considering and weighing it, is demonstrated by a rather significant episode. After several hours of deliberation, the jury sent a note to the court requesting to see a certain exhibit, which the note identified with precision, in spite of the fact that over two hundred exhibits had been introduced during the protracted trial. The exhibit was a document on which the question of defendant's liability largely hinged.
The motion for judgment notwithstanding the verdict and the motion for a new trial, are denied.