1915 CanLII 535 (ON CA)

DALE v. TORONTO R. CO.

Ontario Supreme Court, Appellate Division, Riddell, Latchford, Middleton
and Kelly, JJ. May 18, 1915.

D. L. McCarthy, K.C., for appellants.

V. F. Davidson, K.C., for plaintiff, respondent.
RIDDELL, J. :—The plaintiff was seriously injured by being
thrown down on the pavement from a car of the Toronto Railway
Co. Her story, which is accepted by the jury, is, that the car
was negligently started "with a jerk" as she was in the act of
alighting—the jury have also found that there was no contri-
butory negligence on her part. Damages were assessed at
$925—a somewhat large sum, but not excessive in view of the
serious nature of the plaintiff's injuries.
The defendants admit that they would have no hope of suc-
ceeding in the appeal if the case had been properly conducted
at the trial. But they say that the whole address of the plain-
tiff's counsel "consisted of an impassioned abuse of the defen-
dant company and its treatment of the public, in addition to
a reference to the house of the Baron on the hill;" that he "en-
tirely confined himself to an appeal to the sympathy of the jury
on behalf of 'this poor unfortunate plaintiff,' picturing her
ou the one side and this wealthy octopus corporation on the
other." So says the claims-agent of the railway company, " in
 his affidavit. A student-at-law swears that counsel "on behalf
of the plaintiff referred to the defendants as a huge octopus
having a stranglehold on the people, spreading its tentacles
over the city, gathering in the nickels from the poor working
people," etc., etc.
The plaintiff files a number of affidavits : the allegation that

1915 CanLII 535 (ON CA)

the defendants were referred to as "a wealthy octopus corpora-
tion" is specifically denied; and several deponents, including
the counsel himself, consider the address a fair one. The use
of the words "octopus and strangle-hold" is admitted: and this
is what is said by counsel himself :—
"12. In the introduction to my address, I had in mind that
the company's explanation of the accident was more remarkable
than a fairy story.
"13. I accordingly, at the very beginning, before going into
the evidence, outlined an imaginary fairy story of a giant named
"Stranglehold," who had his castle on a hill, to whom his sub-
jects had to pay a silver toll for being carried through the city,
and that his tentacles were spread over the city, and that one
day a woman travelling in one of the carriages was frightened
by the apparition of the giant and threw herself off the car-
riage, but the giant, repenting, held her up as she fell so that
her hands were not bruised and she fell straight out from the
carriage.
"14. It was in this portion of my address that the words
"octopus" and "stranglehold" were used, and I say that dui-
ing this portion of my address jurymen were smiling, and I was
glad when I could get through what I was compelled to finish
because I had started it, and I was able to proceed to the serious
examination of the evidence."
He does not say that he had not in mind when telling this
"fairy story" the Toronto Railway Company and a gentleman
very generally identified with it, who has his residence "on the
hill," nor does he say that he did not intend and expect that the
Toronto Railway Company and that well-known gentleman
would at once be recognised under the allegory. Probably he
would agree that it would shew quite too much naiveté—guile-
lessness—for any one who lives in Toronto or its vicinity, or
even who reads the Toronto newspapers, not at once to identify
that "Giant named `Stranglehold' . . . to whom his sub-
jects had to pay a silver toll for: being carried: through the
city."
The trial Judge found no difficulty in doing so : in his charge
he says : (Counsel) "has made a very impassioned appeal to

1915 CanLII 535 (ON CA)

you on behalf of this woman, and I would be sorry to say any-
thing that would detract from the effect of that appeal; but,
gentlemen, you must bear in mind that you have in these cases
to go by the weight of the evidence you hear. If the truth be
on this evidence that this woman stepped off that car before it
came to a standstill, when it was in motion, it does not make a
particle of difference whether the street railway company is
an octopus or stranglehold or anything of that sort; does not
make a bit of difference what they are if, in fact, the truth be
on the evidence that she stepped off in that way."
But the learned Judge does not at all support the allegations
of the defendants' deponents that the evidence was not dis-
cussed: he says in his charge (to which no objection was taken) :
"Now then, what is the truth about it? I am not going to refer
to this evidence in any detail at all ; counsel for the plaintiff has
gone into that in detail."
No objection was taken by the defendants to the address of
counsel (in this regard) : the trial Judge was not asked to inter-
fere ; and the first time any point is sought to be made of the
alleged misconduct of counsel is on this appeal.
The facts then, as I see them, are that counsel for the plain-
tiff (I) "made a very impassioned appeal . . . on behalf
of" his client, (2) and referred in an allegorical but unmis-
takable way to the defendant railway company as a "Giant
called Stranglehold . . . whose subjects had to pay him a
silver toll" and whose "tentacles were spread over the city;"
that (3) no objection was taken to these remarks; (4) the coun-
sel discussed the evidence fully and in such a way that the trial
Judge did not find it necessary to refer to it in any detail; (5,
the verdict is not unsatisfactory.
As to the first: counsel has the right to make an impassioned
address on behalf of his client—nay, in no few , cases it may be
a duty to make an impassioned address—mere earnestness, fer-
vour or even passion, is not in . itself objectionable—so long as
counsel does not transgress the decorum which should be ob-
served in His Majesty's Court and does not offend in other
respects—and Courts do and must give considerable latitude
even to extravagant declamation.

1915 CanLII 535 (ON CA)

That the plaintiff was (if she was) described as a "poor uu•
fortunate" person, and sympathy claimed for her as such, is
one of the commonest tricks of advocacy, in bad taste perhaps,
but not ground for a new trial if standing by itself :. Dowdell v.
Wilcox (1884) , 64 Iowa 721, 724 ; Baker y. City of Madison
(1885), 62 Wis. 137, 147. The trial Judge should stop this
kind of thing when carried too far : but a jury trial is a fight
and not an afternoon tea.
"To rigidly require counsel to confine themselves directly
to the evidence would be a delicate task, both for the trial and
the appellate courts, and it is far better to commit something to
the discretion of the trial court than to attempt to lay down
or enforce a general rule defining the precise limits of the argu-
ment. If counsel make material statements outside of the evid-
ence which are likely to do" the opposite party "injury, it
should be deemed an abuse of discretion . . .; but where the
statement is . . . of a character not likely to prejudice the cause
. . . in the minds of honest men of fair intelligence, the fail-
ure of the court to check counsel should not be deemed such
an abuse of discretion as to require a reversal:" Combs v. The
State (1881) , 75 Ind. 215.
The allegorical statements are wholly objectionable from any
point of view, taste (although indeed de gustibus non est dis-
putandum), ethics, law. The trial Judge, if he thought proper,
would have been justified, proprio motu, in stopping counsel
and administering a stern rebuke. This course, however, or any
other must, within reasonably wide limits, be in the discretion of
the trial Judge : he sees the jury, sees and hears the counsel, 3s
fully cognizant of the whole atmosphere of the case—all, ad-
vantages we do not enjoy. But counsel for the opposite party
has also a duty—he should, if he thinks the remarks injurious
to his client, object openly and at once. He may think that
what is said, designed as it is to hurt his client, is really having
a contrary effect—and in many (I believe most) cases he will
be right in so thinking—jurymen are not the compounds of
ignorance, weakness and prejudice they are sometimes sup-
posed to be; and in many cases in my own observation, I am

1915 CanLII 535 (ON CA)

confident that unfair argument and "mud-slinging" hurt rather
than helped those who indulged in them. If counsel says nothing,
but allows the objectionable address to proceed without interrup-
tion, he should prima facie be considered as waiving all objec-
tion and taking his chances of a favourable verdict—so that it
will be too late to raise the objection as a ground of a motion for
a new trial. This is in substance what was said in the Court of
Appeal in Sornberger v. Canadian Pacific R.W. Co. (1897), 24
A.R: 263, after a very able and complete argument.
I do not at all say that cases may not arise in which, not-
withstanding the omission of counsel to object, an appellate
Court will grant a new trial—but these cases must be Ps-
ceptional, and some injustice must be either apparent or
strongly suspected. Nothing of that kind is present here: thy
evidence was fully discussed, and there does not seem to be art.,
reason for suspecting injustice.
We should, I think, dismiss this appeal : but, to shew oui
disapprobation of the language employed by the plaintiff's
counsel, refuse costs.
I should add a general observation :—the mischievous prac-
tice of some counsel—few in number as I hope and believe they
— employing inflammatory language in addressing juries,
are—of
should be checked it is an abuse of the privileges of counsel,
and, if persisted in, a contempt of Court. More than one Judge
has, in such cases, discharged the jury and dealt with the case
alone. This course is in many cases eminently advisable : and, if
it were unflinchingly and pitilessly followed, it would be effec-
tive in putting an end, in most instances, to the impropriety—if
counsel knew that an unfair presentation to the jury would pre-
vent the jury being allowed to pass upon his case, he would be
careful not to transgress—unless he were a fool: there is no
known cure for that.
 I .any not to be taken as disapproving the conduct of the
trial Judge here : no doubt, he did not consider that the rhetoric
of counsel had any evil influence on the jury.
LATCHFORD, MIDDLETON, and KELLY, JJ., agreed in the result.
Appeal dismissed without costs.

1915 CanLII 535 (ON CA)