Opinion
6 Div. 8.
October 31, 1933.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action for damages for personal injuries by Mrs. R. E. Bryan against the Birmingham Electric Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
The bill of exceptions shows the following:
"Thereupon, the following proceedings occurred during the argument of the case to the jury by counsel for the plaintiff:
"Mr. Denson: The railroad has done here what the railroad usually does —
"Mr. Simpson: I object to that, if the court please.
"The Court: I sustain the objection.
"Mr. Denson: We except.
"Mr. Simpson: I move to exclude that statement.
"The Court: There is no evidence here as to what the railroad usually does.
"Mr. Denson: We except.
"The Court: And I exclude it.
"Mr. Denson: We except.
"I will say, gentlemen of the jury, as any defendant usually does.
"Mr. Simpson: And I move to exclude that statement; there is no evidence here as to the defendant bringing in evidence —
"Mr. Denson: I did not say 'the' defendant. I said 'any' defendant.
"The Court: Overruled.
"Mr. Simpson: We except.
"Mr. Denson: Well, this is the third time some of you have been on juries with Mr. Simpson in this week.
"The Court: I overrule it as to any defendant.
"Mr. Simpson: We except.
"Mr. Denson: As any defendant usually does, they come in court with witnesses.
"(Argument continues, reference being made to a case where there was a negro on one side and white witnesses on the other and the jury gave a verdict in favor of the negro.)
"Mr. Denson: I remember another case where a Chinaman had his leg cut off while a passenger —
"Mr. Simpson: If the court please, we are not trying the facts of the other cases —
"Mr. Denson: I have a right to illustrate it.
"Mr. Simpson: I object to his stating the facts of other cases that he says he may have been connected with at some other time.
"Mr. Denson: It is just to illustrate my point.
"Mr. Simpson: I don't know anything about the facts of the other cases, and I don't know whether he is stating the matter correctly or not, and it has nothing to do with this case.
"Mr. Denson: Don't take it out of my time.
"Mr. Simpson: I object to that sort of argument, may it please the court.
"Mr. Denson: I have a right to illustrate it.
"The Court: Overruled.
"Mr. Simpson: We except.
"Mr. Denson: I took the negro's case and the Chinaman's, and you know the reason I took them. There was nobody for the Chinaman except himself, and the defendant brought in four witnesses, as usual the conductor and motorman, and two passengers, as to how it happened. But we had a different arrangement in the court, and a different way of treating witnesses, who were in a room by themselves and they didn't know what took place in the court room, and all of them were shown to be liars and the jury brought in a verdict for the Chinaman.
"Mr. Simpson: May it please the court, I move to exclude that statement from the jury.
"The Court: What the jury did in that case has nothing to do with this and I exclude that.
"Mr. Denson: We except.
"The Court: I exclude that from your consideration.
"Mr. Denson: It was reported in the 156 Alabama, Birmingham Railway Light and Power Company against Henry Jung, and if I am not stating it correctly, I invite the gentlemen to check it up.
"Mr. Simpson: I don't know what happened in that case. I imagine you would find it was reversed by the Supreme Court.
"Mr. Denson: No, it was not, and I collected the money and used a part of it on my wedding tour, and that is the reason I remember it so well, in 1909.
"Mr. Simpson: May it please the court, I object to that statement and move to exclude it.
"The Court: Yes, I exclude that.
"Mr. Denson: Well, he asked the questions and I just answered them, if your honor please.
"The Court: Yes, I exclude anything about the result of the other case, Mr. Denson.
"Mr. Denson: But he asked for it, if the court please. He asked for it, and we except.
"The Court: All right.
"Mr. Simpson: And I move the court further before we get away from it to instruct the jury that sort of argument is improper.
"The Court: Gentlemen of the jury, I will state that the statement as to the result of the case — it is all right for the purpose of illustrating the argument, to illustrate it in a reasonable and proper manner with another case, but to give the result of it, is improper, and I will sustain the objection and exclude it and you must not consider it.
"Mr. Denson: We except. Yes, sir.
"The Court: Yes, sir."
Lange, Simpson Brantley and W. P. Rutledge, all of Birmingham, for appellant.
Misconduct of counsel in making statements outside the evidence in his closing argument to the jury which in the nature thereof are calculated to cause bias, prejudice, favoritism, or passion, is improper and, when of such a character as cannot be eradicated from the minds of the jury, is ground for mistrial E.T., V. G. R. Co. v. Carloss, 77 Ala. 443; Metropolitan L. I. Co. v. Carter, 212 Ala. 212, 102 So. 130; Tuscaloosa v. Hill, 14 Ala. App. 541, 69 So. 486. Where an illegitimate argument is made, it is the duty of the trial court, on objection of the adverse party, to promptly reprimand guilty counsel and instruct the jury that such argument is improper and should not be considered. Brotherhood v. Trimm, 207 Ala. 587, 93 So. 533.
W. A. Denson, of Birmingham, for appellee.
Objections to argument must be specific, and if any portion of the part objected to be not subject to the ground of objection made, an exception to the ruling of the court in respect thereto will not sustain an assignment of error. Where the record shows the court ruled with appellant and sustained his objection and appellant did not ask for any further action on the part of the court which was refused, there is nothing presented for review. Cutcliff v. B., R. L. P. Co., 148 Ala. 110, 41 So. 873, 874. The record shows no illegal argument on the part of appellee's counsel and no reservation by appellant in respect to any argument which can support a reversal of the judgment appealed from. Starr Jobbing House v. May Hosiery Mill, 207 Ala. 623, 93 So. 572, 576; Peel v. State, 144 Ala. 134, 39 So. 251, 254; King v. State, 19 Ala. App. 155, 96 So. 636, 639; Bass v. State, 219 Ala. 286, 122 So. 45, 49; Smith v. State, 197 Ala. 200, 72 So. 316, 319; Phillips v. Ashworth, 220 Ala. 241, 124 So. 519, 522; American Ins. Co. v. Fuller, 224 Ala. 389, 140 So. 555, 556; Harvey v. State, 15 Ala. App. 314, 73 So. 200, 201; Cross v. State, 68 Ala. 476; Gilbert v. State, 19 Ala. App. 106, 95 So. 502, 504; Peek v. State, 19 Ala. App. 371, 97 So. 374, 375; Holloway v. State, 19 Ala. App. 372, 97 So. 376, 377; Dowdy v. State, 19 Ala. App. 504, 98 So. 365, 366; Bridgeforth v. State, 16 Ala. App. 584, 80 So. 158; Lindsey v. State, 17 Ala. App. 671, 88 So. 189, 190; Gibbs v. State, 22 Ala. App. 346, 115 So. 693, 694; Soutoula v. State, 20 Ala. App. 365, 102 So. 151; Henderson v. State, 15 Ala. App. 2, 72 So. 590, 591.
This appeal is from the original judgment and also from the trial court's action overruling defendant's motion for a new trial.
The suit was by appellee against appellant to recover damages for alleged personal injuries to plaintiff on account of negligence of the defendant's agents, servants, or employees in and about the carriage of the plaintiff as a passenger.
The trial in the court below resulted in a verdict of $400 for plaintiff, and it is here insisted, among other things, that the verdict, under the facts, is so grossly excessive the court for this reason should have set it aside on motion for a new trial citing Alabama By-Products Corporation v. Cosby, 217 Ala. 144, 115 So. 31. Another insistence presented and strenuously urged by appellant is made the basis of assignments of error 15, 16, 17, 19, and 21, all of which are predicated upon the alleged misconduct of plaintiff's counsel in making statements of fact outside the evidence in his closing argument to the jury which in the nature thereof were calculated to cause bias, prejudice, favoritism, or passion in the minds of the jury.
Without reference to such merit it contained we may pretermit a consideration of the first-mentioned insistence relating to the excessiveness of the judgment; but we are of the opinion that the latter insistence is well taken and must be sustained. The decisions of the Supreme Court of Alabama, as well as the decisions of this court, have very definitely established the attitude of the high courts of this state towards improper conduct on the part of counsel in the trial of cases. In Wolffe v. Minnis, 74 Ala. 386, 387-389, the Supreme Court, speaking through one of its most illustrious Justices (Mr. Justice Stone), said: "We think the language complained of in this case should not have been indulged; and coming as it did from able, eminent counsel, it was well calculated to exert an improper influence on the minds of the jurors. The court might, and probably should, have arrested it ex mero motu. It is one of the highest judicial functions to see the law impartially administered, and to prevent, as far as possible, all improper, extraneous influences from finding their way into the jury-box. And when opposing counsel objected to the improper language employed, and called the attention of the court to it, it was not enough that offending counsel replied, 'Oh, well, I'll take it back.' Such remark cannot efface the impression. The court should have instructed the jury, in clear terms, that such remarks were not legitimate argument, and that they should not consider anything, thus said, in their deliberations. Nothing short of a prompt, emphatic disapproval of such line of argument, and that from the court itself, can avert the probable mischief. Sullivan v. State, 66 Ala. 48; Cross v. State, 68 Ala. 476."
In line with the foregoing, we think the trial judge permitted counsel to transcend the legitimate boundary of discussion. As will appear in his closing argument to the jury, counsel for plaintiff was allowed to state, as facts, what he alleged had occurred in former trials in which he was of counsel wherein the predecessor of this same appellant was defendant. There was nothing in the evidence of this case, nor could there have been, to warrant counsel in the assertions made, and the recitation of facts of the former cases referred to by him. It is true, in response to repeated objections by appellant's counsel, the court did remark: "What the jury did in other cases has nothing to do with this and I exclude that." This was in no wise sufficient; the court should have not only excluded the remarks of counsel referring to the result of the former cases and the verdicts of the jury, but should have gone further, if it was in his power so to do, and emphatically erase from the minds of this jury every statement by counsel as to what the facts were in the former cases to which he made repeated reference and should also have excluded the remarks of counsel as to "all of them (witnesses) were shown to have been liars and the jury brought in a verdict for the Chinaman."
This court, in the case of City of Tuscaloosa v. Hill 14 Ala. App. 541, 69 So. 486, held to the long-established rule, and in said case cited and quoted from numerous decisions all of which sustain the holding here.
Pretermitting the consideration of any other of the questions raised by this record, we have no hesitancy in saying it is our opinion the court below, for the reasons stated, should have ex mero motu declared a mistrial. Having failed so to do, we hold there was error to a reversal in overruling the motion for a new trial in which were presented the questions here discussed, together with numerous other questions, some of which appear to contain merit.
Reversed and remanded.