Opinion
6 Div. 245.
January 15, 1925.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Percy, Benners Burr, of Birmingham, for appellant.
A count joining an action on the case and an action in trespass is demurrable. Interstate Lbr. Co. v. Duke, 183 Ala. 484, 62 So. 845; City Ice Del. Co. v. Henry, 139 Ala. 161, 34 So. 389; Henry v. Carlton, 113 Ala. 636, 21 So. 225. Evidence of the time and effort required by plaintiff to obtain another house was erroneously admitted. T. C. I. Co. v. Kelly, 163 Ala. 348, 50 So. 1008; Ala. etc., Ry. v. Foley, 195 Ala. 391, 70 So. 726; B. R., L. P. Co. v. Beck, 1 Ala. App. 291, 55 So. 428; Tallassee Falls Co. v. Parks, 2 Ala. App. 278, 56 So. 588. Defendant showed his ownership of the land and his right to enter, and this was a complete defense to the count in trespass. Sou. Ry. v. Hayes, 183 Ala. 465, 62 So. 874. The judgment should have been set aside because of the improper argument of plaintiff's counsel. Ala. F. I. Co. v. Williams, 207 Ala. 99, 91 So. 879; Watts v. Espy, 211 Ala. 502, 101 So. 106; Jackson Lbr. Co. v. Trammell, 199 Ala. 536, 74 So. 469; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387; Standridge v. Martin, 203 Ala. 486, 84 So. 266; Ala. I. F. Co. v. Benenante, 11 Ala. App. 644, 66 So. 942; B. R., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; Wolffe v. Minnis, 74 Ala. 386. The judgment was excessive, and new trial should have been granted. Gulf States S. Co. v. Beveridge, 209 Ala. 473, 96 So. 587; Gulf States Steel Co. v. Comstock, 17 Ala. App. 430, 85 So. 305.
H. M. Abercrombie and Edgar Allen, both of Birmingham, for appellee.
Counts 4 and 5 were not subject to demurrer. Stowers Fur. Co. v. Brake, 158 Ala. 639, 48 So. 89; Brothers v. Brothers, 208 Ala. 258, 94 So. 175; Hardeman v. Williams, 169 Ala. 50, 53 So. 794; Henry v. Carlton, 113 Ala. 636, 21 So. 225; 38 Cyc. 1098 (B), note 8. There was no error in admission of evidence. 38 Cyc. 1137; Snedecor v. Pope, 143 Ala. 275, 39 So. 318. The charges requested by defendant were properly refused. City of Montgomery v. Bradley, 159 Ala. 230, 48 So. 809; Hays v. Lemoine, 156 Ala. 465, 47 So. 99; Barlow v. Hamilton, 151 Ala. 634, 44 So. 657; Jones v. State, 79 Ala. 23; Sadler v. A. G. S., 204 Ala. 155, 85 So. 380; Snedecor v. Pope, supra. The error of argument was removed. B. R., L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 665; Lusk v. Britton, 198 Ala. 245, 73 So. 492; Ala. Power Co. v. Bruce, 209 Ala. 423, 96 So. 346; Western Ry. v. Mays, 197 Ala. 367, 72 So. 641; Tenn. River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266; M. L. W. Co. v. Thombs, 204 Ala. 678, 87 So. 205; Headley v. Harris, 196 Ala. 520, 71 So. 695; Ala. S. Co. v. Sells, 168 Ala. 547, 52 So. 921. The judgment was not excessive. Nat. Sur. Co. v. Mabry, 139 Ala. 217, 35 So. 698; Birmingham Macaroni Co. v. Tadrick, 205 Ala. 540, 88 So. 858.
This case went to the jury on counts 4 and 5. Count 4 is trespass quare clausum fregit, and, while it charges that in committing the trespass defendant's servants disarranged and removed the furniture, there is no claim of damages as for a taking or injury to the furniture, but the claim for damages is confined to the injury to the realty and mental and physical suffering as well as punitive damages growing out of said trespass, and the removal of the furniture was merely descriptive of the trespass or ejection of the plaintiff Count 5 is for a trespass in taking temporarily the plaintiff's furniture, and for damages for depriving him of the use of same, and for injury thereto during the detention, and for mental anguish caused by said wrongful act.
Neither of these counts sets up two separate and distinct causes of action, and are unlike the count condemned in the case of Interstate v. Duke, 183 Ala. 484, 62 So. 845. The trial court did not err in overruling the defendant's demurrer to these counts.
There was no error in permitting the contract of employment to be introduced in evidence. The lease referred to and was based upon the employment between the parties and they should both have been considered together. True, the proof shows that the plaintiff had previously been discharged, but was re-employed, and there was no proof of a new and different contract of employment, and, presumptively, he was reinstated under the old contract.
There was no error in permitting the plaintiff to show the trouble and inconvenience he had and experienced in trying to get a home, or the condition in which he was placed as a result of the trespass and ejection, and was provable under his claim for mental and physical pain, notwithstanding he made no claim in the complaint as for an ejection and a deprivation of the use of the premises.
Assignments of error 17, 20, 21, 22, and 23 relate to certain refused charges which counsel for appellant contends are based upon the case of So. R. R. v. Hays, 183 Ala. 465, 62 So. 874. We may concede that, notwithstanding there was no written notice, as required by the lease of its termination, there was sufficient evidence to make it a question for the jury as to whether or not both parties considered it terminated. The defendant's evidence shows that plaintiff was re-employed, with the distinct understanding that the house was wanted for other purposes and that he was to vacate the same, while the plaintiff's evidence tends to show that, while he was informed that defendant wanted the house for other purposes, he insisted that he should keep the house, and was then told to go to work. Therefore, as the charges hypothesize this fact, under the Hays Case, supra, they might have properly been given if confined to count 4, quare clausum fregit, but they instructed a general finding for the defendant, and which facts there set up did not justify the wrong complained of in count 5.
So much of the argument as excepted to by defendant, to wit: "The defendant is a large corporation and a verdict which would punish me, or would punish one of you, would not be sufficient to punish this large corporation, and the jury by its verdict should assess such an amount as would punish defendant," has been emphatically condemned by this court. Ala. Fuel Co. v. Williams, 207 Ala. 99, 91 So. 879, and cases there cited. True, when counsel for the defendant objected, counsel for plaintiff said, "We will withdraw this argument." Thereupon the court turned to the jury and said, "The argument has been withdrawn, and you will not consider it." But it is rather questionable if poison of this character, when injected into the jury by improper evidence or argument, can be subsequently eradicated. At any rate, the action of the trial court should have been more positive and extensive than what was done in the present case. From aught appearing, the court told the jury that they should not consider it as it had been withdrawn. There was no admonition of counsel or instruction that said argument was illegal and highly improper. "Nothing short of a prompt, emphatic disapproval of such line of argument, and that from the court itself, can avert the probable mischief." Wolffe v. Minnis, 74 Ala. 386. See, also, Metropolitan Life Ins. Co. v. Carter, ante, p. 212, 102 So. 130, and many cases there cited.
It is true that, when it appears that the trial court takes prompt measure to rid a case of improper matter and subsequently refused a motion for a new trial or grants it, this court will indulge some presumption in favor of the ruling. Thames v. L. N. R. R., 208 Ala. 255, 94 So. 487. But no such presumption can be indulged in this instance. First, the record presents an insufficient attempt to eradicate it, and, second, it also discloses that the trial judge did not rule or entertain the opinion that it had been entirely eradicated, for the reason that he granted the motion unless there was a remittitur of damages, thus, in effect, holding that the jury in fixing the damages had been actuated by prejudice or passion.
We therefore hold that the trial court erred in not granting the motion unconditionally because of this improper argument, and the judgment of the trial court is reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, THOMAS, and MILLER, JJ., concur.