Opinion
7 Div. 434.
March 25, 1937.
Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.
Goodhue Lusk, of Gadsden, for appellant.
A new trial should be granted if counsel disregarding court's rulings persists in attempting to get incompetent evidence before the jury to the prejudice of the unsuccessful party. Birmingham Bap. Hosp. v. Blackwell, 221 Ala. 225, 128 So. 389; Brotherhood of R. R. Trainmen v. Jennings, 232 Ala. 438, 168 So. 173; Porter Coal Co. v. Davis, 231 Ala. 359, 165 So. 93.
Rains Rains, of Gadsden, for appellee.
Brief did not reach the Reporter.
Action for damages by O. W. Stanfield against the Alabama Coca-Cola Bottling Company. Judgment for plaintiff, and defendant appeals.
Transferred from Court of Appeals under Code 1923, § 7326.
Reversed and remanded.
Ground 1 of the motion for a new trial is as follows:
"1. The action of plaintiff's counsel in propounding questions to witnesses and in statements that he expected or offered to prove certain facts were highly prejudicial to defendant and grossly improper and tended to influence the jury in rendering its verdict against the defendant, said questions and statements or offers by plaintiff's counsel being as follows:
"(a) During the cross-examination of W. C. Dumas, a witness for the defendant, plaintiff's counsel propounded to him this question:
"You've done the same thing a number of times? You have seen that man the Coca-Cola Company sends around to eat glass for them too haven't you?
"(b) During the cross-examination of W. C. Dumas, a witness for the defendant, plaintiff's counsel propounded to him this question:
" 'Would you mind drinking some of that bottle with that cap in it now?'
"(c) During the cross-examination of W. C. Dumas, a witness for the defendant, plaintiff's counsel propounded to him this question:
" 'Are you going to stay here and testify in this next case I've got about a rat in a Coca-Cola bottle?'
"(d) During the cross-examination of F. S. Bridges, a witness for the defendant, plaintiff's counsel propounded to him this question:
" 'Now I want to ask you this question: I believe it is in line with the complaint. I want you to tell the jury whether or not the Alabama Coca-Cola Bottling Company from its various customers throughout Etowah County and Calhoun County have frequently returned to them bottles of Coca-Cola with flies and other soluble bodies in it?'
"(e) After the court sustained defendant's objection to the above question plaintiff's counsel stated in the presence of the jury:
" 'We expect, if the court please, and offer to show that there is frequently returned to the Alabama Coca-Cola Bottling Company here in Gadsden, by their customers, bottles unopened containing flies and other things in the bottle of coca cola.'
"The Court stated: I will sustain the objection.
"Plaintiff's counsel further stated in the presence of the jury:
" 'And further offer to show — wait just a minute — from the very store where this particular bottle was sold, Mr. Beck was along with some of his helpers and took up a bottle in that same store.' "
The gravamen of the plaintiff's complaint is that "defendant negligently bottled or allowed to remain in said bottle when said coca cola was bottled, a coca cola cap or other foreign matter" which rendered the coca cola unfit for human consumption. (Italics supplied.) Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667; Lewis et al. v. Linkett, 232 Ala. 233, 167 So. 286.
Defendant's special charge, made the basis of assignment of error 1, states a sound proposition of law as applied to the case as presented on the evidence, and might well have been given. However, the oral charge of the court fully covered this proposition and the refusal of the charge was not error which justifies a reversal of the judgment. Code 1923, § 9509; Nickerson v. State, 205 Ala. 684, 88 So. 905.
The other special charges upon which assignments of error 2, 3, and 4 are grounded, if they had been given, would have invaded the province of the jury, in that they each assume that the facts hypothesized constituted negligence on the part of the plaintiff proximately contributing to his hurt.
In Birmingham Nat. Bank v. Bradley, 108 Ala. 205, 208, 19 So. 791, 795, decided more than forty years ago, this court held that the persistent propounding to witnesses of questions and proffers to produce testimony, in defiance of the ruling of the court, for the purpose of getting before the jury facts or statements, not admissible and calculated to prejudice their judgment, "demands the prompt interference of the court, and a verdict should not be allowed to stand obtained by such a practice."
This rule has since been consistently adhered to. Birmingham Baptist Hospital, Inc., v. Blackwell, 221 Ala. 225, 128 So. 389; Brotherhood of Railroad Trainmen et al. v. Jennings, 232 Ala. 438, 168 So. 173; Porter Coal Co. v. Davis, 231 Ala. 359, 165 So. 93.
The conduct of plaintiff's counsel during the cross-examination of defendant's witnesses Dumas and Bridges, the predicate for grounds 1, (a), (b), (c), (d), and (e) of the motion for a new trial, was within the rule of these cases, and the question was properly raised by defendant's objection and motion for mistrial, and was renewed in the motion for a new trial.
The judgment here is that the court erred in overruling the defendant's motion for a new trial. For this error, let the judgment be reversed.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.