Opinion
7 Div. 390.
November 1, 1938.
Appeal from Circuit Court, DeKalb County; A. E. Hawkins, Judge.
Action for damages for wrongful death by Josephine Bailey, as administratrix of the estate of John B. Bailey, deceased, against James R. Greenwood. From a judgment for plaintiff, defendant appeals.
Affirmed.
Haralson Crawford, of Fort Payne, for appellant.
The testimony as to what another person exclaimed on seeing the car of defendant was hearsay and inadmissible. Moore v. Maxwell Delhomme, 155 Ala. 299, 46 So. 755; Davis v. Smitherman, 209 Ala. 244, 96 So. 208; Memphis C. R. Co. v. Womack, 84 Ala. 149, 4 So. 618. Such exclamation was but the expression of an opinion and was not admissible. Gordon v. State, 129 Ala. 113, 30 So. 30. It was not of the res gestae. Ala. G. S. R. Co. v. Hawk, 72 Ala. 112, 47 Am.Rep. 403; Travelers' Ins. Co. v. Whitman, 202 Ala. 388, 80 So. 470. Despite the action taken by the court on objection to argument of counsel for plaintiff to the jury, such argument requires a reversal of the judgment. Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Wolffe v. Minnis, 74 Ala. 386; Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837; Pryor v. Limestone Co., 225 Ala. 540, 144 So. 18.
Scott Dawson and C. A. Wolfes, all of Fort Payne, for appellee.
Where the declaration of the bystander is made in the presence of the party to the transaction and is such as to call for a denial, it is admissible. Staples v. Steed, 6 Ala. App. 594, 60 So. 499. The accusatory or incriminating statement is admissible, not as evidence of the truth of the fact stated, but to show accused's admission by silence. 16 C.J. 631; Vaughn v. State, 130 Ala. 18, 30 So. 669. Declarations of third persons may be considered as part of the res gestae when a part of the transaction and under such circumstances as that spontaneity is assured, free from all suspicion of device, premeditation or afterthought. Johns Und. Co. v. Hess-Strickland Co., 213 Ala. 78, 104 So. 250. The court will not too narrowly criticize argument of counsel in matter of inference drawn or illustrations adopted in pressing a point. Jones v. Colvard, 215 Ala. 216, 109 So. 877. Error, if any, in alleged improper argument, was eradicated by withdrawal of argument. Birmingham Elec. Co. v. Edge, 22 Ala. App. 279, 114 So. 791. Where the court sustains defendant's objection to argument the ruling is with defendant and not subject to review. McCormack Bros. Motor Car Co. v. Martin, 21 Ala. App. 50, 105 So. 697.
This was a suit by appellee under the provisions of Code 1923, § 5696, seeking to recover damages for the death of her intestate John B. Bailey, caused by his being run over or against by an automobile driven by appellant.
The appellant, represented by able counsel, presents but two questions for our consideration.
The evidence against him, while circumstantial, is tacitly admitted to be sufficient to carry the issues to the jury — and to support the verdict returned.
Deceased was struck down by an automobile, driven by someone, as he was walking along Gault Avenue in the City of Ft. Payne. A short time after he was struck, appellant drove his car to the scene of the accident, coming from the opposite direction from that in which the car was going that struck deceased.
Appellant drove up to the scene of the accident and stopped his car.
A witness was allowed to testify, over appellant's objection — due exception being reserved — that when appellant so stopped his car, a lady across the street, in hearing of appellant and witness, exclaimed: "There's the car that struck Mr. Bailey;" and that immediately upon this exclamation appellant, without making any reply, "just threw the (his) car in gear and pulled out down the road coming towards town."
We think the testimony in question was admissible "not as evidence of the truth of the facts stated, but to show accused's admission by silence," as well as by flight. 16 C.J. 631; Vaughn et al. v. State, 130 Ala. 18, 30 So. 669.
As for the argument for error in the refusal of the court to declare a mistrial because of the statement of plaintiff's (appellee's) counsel, in his argument to the jury that "the officers would do anything they could to keep Mr. Greenwood from 'tom catting' around over town," we have to say that we think the action of the court in excluding said statement from the jury was all that was requisite.
The smallness of the verdict returned ($500) is proof to us that said remark could not have worked prejudice to appellant that was not eradicated by the action of the court.
We find no error in any matter urged upon our consideration; and the judgment is affirmed.
Affirmed.