Alabama Fuel & Iron Co. v. Benenante

• Decision Date: 10 November 1914
• Docket Number: 279
• Citation: 11 Ala.App. 644,66 So. 942
• Parties: ALABAMA FUEL & IRON CO. v. BENENANTE.
• Court: Alabama Court of Appeals

66 So. 942

11 Ala.App. 644

ALABAMA FUEL & IRON CO. v. BENENANTE.

No. 279

Court of Appeals of Alabama

November 10, 1914

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Action by Joe Benenante against the Alabama Fuel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The first count, after setting out the relationship and the fact that plaintiff was injured by a large rock falling on him while in the pursuit of his employment in the coal mine avers the negligence to consist in the failure of the defendant to provide plaintiff with a safe place in which to work. The second count is based on a defect in the ways works, etc., in that the roof of the mine was so defective insecure, and unsafe as to cause the rock to fall. The third count is based on the negligence of the superintendent whilst in the exercise of the superintendence in failing to warn plaintiff of the dangers of said roof. The fourth count is based on the negligent orders of the superintendent in directing plaintiff to enter said room and work in said mine when he knew it to be dangerous. Amended count A is practically the same as count 3. Amended count B is the same as count 4. Amended count C claims for the failure of defendant to promptly deliver or cause to be delivered props and timbers to plaintiff's working place in said mine with the allegation that prior to the injury plaintiff had selected and marked said props and timbers, and designated thereon the place where the same were to be delivered. Amended count D is similar to count 2. Amended count E is similar to count 3. Plea 6 sets up that plaintiff was informed of the condition of said rock and the roof of said room at the place of his said injury, and, knowing that the same was liable to fall at any moment and likely injure him, negligently placed himself under the same, and was injured. Pleas 5 and 6 were filed to the amended counts of the complaint.

Stokely, Scrivner & Dominick, of Birmingham, for appellant.

Riddle & Ellis, of Columbiana, for appellee.

CRUM J.

The substantive averments of plea 5 are:

"That the plaintiff himself was guilty of negligence which proximately contributed to his alleged injuries, in this: Plaintiff, well knowing that a rock in the room in which he was working as a miner in defendant's mine was loose and likely to fall, and that if same should fall while he was under or dangerously near the same he would likely be injured, nevertheless negligently worked under or dangerously near said rock, and as a proximate consequence of his said conduct the rock fell upon him and he received his alleged injuries and damages."

There is no material difference between this plea and pleas D and 5 held good in the case of Black v. Roden Coal Co., 178 Ala. 531, 59 So. 497; nor is the plea subject to the objection pointed out to plea 3 in the case of Porter v. T.C. & I. Co., 177 Ala. 406, 59 So. 255. That plea was held bad because of its alternative averments; the court saying:

"The allegation that plaintiff's intestate knew that a part of the roof was 'in danger of falling,' and that, should the same fall, injury would result, is not sufficient. A person working in such a business must know that there is danger all the time; yet, unless the danger is imminent and he acts negligently in regard thereto, he cannot be said to be contributorily negligent." And that "for a like reason the other alternative statement, to wit, that he had knowledge that 'a part of the top or roof of said mine was loose,' is defective. It does not show what was the extent of the looseness. It may have been so slight as not to suggest danger."

It will also be observed that the plea in that case did not aver that the plaintiff negligently went under or near the rock which fell upon him. The trial court erred in sustaining the demurrer to plea 5 to certain counts of the complaint.

Plea No. 6 is manifestly bad, in that it does not aver that the negligence on the part of the plaintiff proximately contributed to his injury, and there was no error in sustaining the demurrer thereto.

The questions arising upon the rulings of the trial court in refusing certain special charges requested by appellant and in the admission of evidence may not arise on another trial, and are therefore not considered.

In the course of his concluding argument, one of the plaintiff's counsel made the following several statements to the jury:

"In damage suits, defendants always deny that they are guilty, and bring witnesses to swear it. *** I represent country people and poor people before the jury, and Mr. Dominick, the defendant's lawyer, represents corporations; and, in the five years of my practice at the Columbiana Bar, I have always been representing poor people. *** I represent widows and orphans before this court, and the gentleman on the other side represents great companies. *** If a man is hurt by a railroad car which is left standing on a side track for several days, the railroad company will come into court and beat him out by bringing one or two eyewitnesses to swear that they were on the car and that they saw the whole occurrence."

As each of these several statements was made, counsel for the defendant promptly objected and moved the court to exclude them from the consideration of the jury. The presiding judge in each instance said to the jury, "Gentlemen, that argument is not to be considered by you in deciding this case." The jury having returned a verdict in favor of the plaintiff, the defendant moved the court to vacate the judgment entered thereon and to grant a new trial, assigning, among other grounds, the foregoing quoted remarks of counsel. The trial judge denied the motion, and this action is now assigned as error. The motion did not allege that the remarks did in fact prejudice the defendant.

There was not, and could not properly have been, any issue, or any evidence, or any event, in this case that in even the remotest degree justified or excused such remarks. They were grossly improper, and, coming as they did in the closing argument, when there was no opportunity to reply, were unquestionably highly calculated to prejudice the minds of the jury against the defendant. While the action of the presiding judge on the objections of appellant's counsel was favorable to appellant in the sense that no assignment of error could be predicated upon it, the admonition to the jury appears to have been merely perfunctory; the same words being used in each instance. The court did not ex mero motu exclude the statements; no further reference to or comment upon them was made by the court to the jury, in charge or otherwise. Counsel from whom they emanated was neither reprimanded nor admonished by the court. Not only was there no offer from counsel to withdraw them; but, on the contrary, he persisted in the same line of argument, although his attention had been repeatedly called to its improper character by objections of counsel and rulings of the court.

Certainly, when improper argument is made, objection by the opposing party should be promptly made, and the attention of the presiding judge called thereto, in order that he may then and there, in the proper way, express his disapprobation and as effectually as possible eradicate from the minds of the jury any impression thereby created.

"Nothing short of such action on the part of the court, *** and a clear satisfaction that the injustice thereby done has been removed, should rescue the case from error on appeal, or from a new trial, on the motion of the party against whom it was rendered." Scott v. State, 110 Ala. 48, 53, 20 So. 468, 470.

In Florence C. & I. Co. v. Field, 104 Ala. 471, 480, 16 So. 538, 540, the court sustained an objection to a remark of counsel, and stated to counsel making it that the remark was improper, whereupon counsel remarked, "Well, I withdraw the remark." No exception was reserved, and no motion for a new trial was made. The court said:

"The remark was calculated to seriously prejudice and injure the defendant with the jury. The action of the court in excluding it was very mild, and not a sufficient antidote to the poison that had been injected into the minds of the jury by the use of such language. Verdicts ought not to be won by such methods, and when an attorney, in the heat of debate, goes to such extraordinary lengths, generally, the court should promptly set aside any verdict that may be rendered for his client. The repressive powers of a court, to prevent such departures from legitimate argument of a cause before a jury, should be vigorously applied. No mere statement that it is out of order or improper can meet the exigencies of the case."

See, also, Johnston v. Brentley, 2 Ala.App. 281, 56 So. 742; Hammock v. State, 7 Ala.App. 112, 61 So. 471.

It was said by that eminent judge, Stone, in commenting upon an improper argument of counsel:

"The court might, and *** 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

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