Alabama Fuel & Iron Co. v. Williams

• Decision Date: 12 May 1921
• Docket Number: 7 Div. 169.
• Citation: 207 Ala. 99,91 So. 879
• Parties: ALABAMA FUEL & IRON CO. v. WILLIAMS.
• Court: Alabama Supreme Court

91 So. 879

207 Ala. 99

ALABAMA FUEL & IRON CO. v. WILLIAMS.

7 Div. 169.

Supreme Court of Alabama

May 12, 1921

Rehearing Granted Appellee June 30, 1921.

Rehearing Granted Appellant Nov. 12, 1921.

Rehearing Denied Appellee Dec. 24, 1921.

Appeal from Circuit Court, St. Clair County; Woodson J. Martin Judge.

Action by Mary Williams, as administratrix de bonis non of the estate of Mike Harris, deceased, against the Alabama Fuel &amp Iron Company, for damages for the death of her intestate. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

In an action for personal injuries, brought against a corporation an argument by plaintiff's attorney that what would punish him or the jury might perhaps not punish the defendant corporation was a statement of a fact unsupported by evidence, and which could not have been established by evidence, so that such argument requires a reversal of the judgment for plaintiff.

The suit was originally begun by Addie Haywood, as administratrix. It appears from the exhibit that on trial of the cause with the original plaintiff, on the 20th day of September, the suit was dismissed for want of prosecution and judgment entered against the plaintiff for the cost, and when this suit was called for trial defendant appeared specially, and made a motion to discontinue until the cost accruing under the former order had been fully paid off and discharged. The court denied the motion, and proceeded with the trial. The assignments of error referred to are as follows:

Assignment 30. The court erred in overruling defendant's objection to the following argument of plaintiff's counsel:

"Now, what is necessary to punish the Alabama Fuel & Iron Company? I have a right to say what would punish me or you perhaps would not punish the Alabama Fuel & Iron Company."

Assignment 31. The court erred in overruling appellant's motion to exclude from the jury the argument of appellant's counsel last above set forth. Relative to these assignments, the record shows the following:

In his closing argument to the jury, plaintiff's counsel made the following statement: "Now, what is necessary to punish the Alabama Fuel & Iron Company? I have a right to say what would punish me or you, perhaps, would not punish the Alabama Fuel & Iron Company." Counsel for the defendant said: "We object to that argument on the ground that it is improper." Counsel for the plaintiff stated: "I did not state it as a fact. I said perhaps it would not." Counsel for the defendant then stated: "I object to the argument as it was made, as being improper and illegal." The court stated: "It is entirely for the jury as to the damages." The defendant's counsel then stated: "What we object to is, what would punish him would not punish the Alabama Fuel & Iron Company." The court then said: "There is no evidence of it." Counsel for the plaintiff then stated: "I made the statement to the effect that I said 'perhaps,' and I have the right to argue anything in the hypothesis, and the courts have ruled on it." The court then said: "Let's see. It is a matter which is entirely punitive, and I overrule your objection." Counsel for the defendant then stated: "We reserve an exception, and move the court to exclude it. Your honor understands that." And the court replied: "I understand, and I overrule your motion to exclude." And the defendant then and there duly excepted to this ruling of the court.

Assignment 32. The court erred in overruling appellant's objection to the following argument of appellee's counsel:

"Long overdue, gentlemen, long overdue. This thing occurred the 12th day of December, 1912, nearly 8 years ago, and they have gone unwhipped of justice for 8 long years, and time and time again have escaped what was coming to them under the law."

Assignment 33. Overruling appellant's motion to exclude this argument from the jury.

Assignments 34 and 35. Same as assignments 32 and 33.

Assignment 36. The court erred in overruling appellant's objection to the following argument of appellee's counsel:

"I will say for 8 years, long years, they have escaped what was coming to them under the law, or by some hook or crook they haven't got what was coming to them."

Assignment 37. Failing to exclude this argument from the jury.

Assignment 38. The court erred in overruling appellant's objection to the following argument of appellee's counsel:

"I will say for 8 years, long years, they have escaped what was coming to them under the law; they haven't got what was coming to them."

Assignment 39. In failing to exclude the above argument from the jury.

Assignment 40. The court erred in overruling appellant's objection to the following argument of appellee's counsel:

"And, gentlemen, in the trial of this case, it seems that he and the same flea-bitten stenographer have been together time and time again, on the trial of this case, and they would have you reject the testimony of honest witnesses because they find it in some record made by him and his stenographer, or made by his stenographer for him, on the former trial of this case."

Assignment 41. Failing to exclude the above argument from the jury.

Assignment 42. The court erred in overruling appellant's objection to the following argument of appellee's counsel: "Yes, because-he thinks he has the official stenographer's report. I want you to know if you looked this official stenographer in the face on the trial of this case, he has come here as official stenographer, and identified that book as being correct, a correct record."

Assignment 43. Failing to exclude the above argument from the jury.

In the original brief, in which there are no interlineations, counsel for appellant make the following insistence:

"Error was committed by the court on overruling defendant's objections to portions of the closing argument made by plaintiff's counsel and motion made to exclude these arguments; and error was also committed by the lower court in refusing a new trial based upon the prejudicial effect of arguments made by plaintiff's counsel as to which objections were informally sustained, but not sufficiently handled so as to eradicate injury resulting therefrom. These matters will be grouped and argued together."

Counsel then quote from the opinion in the case as reported in Haywood v. Ala. Fuel & Iron Co., 203 Ala. 551, 84 So. 260. And, as further supporting the assignments of error, in reference to argument of counsel, counsel quoted from third chapter of James, eighth verse; also L. R. A. 1918D, 7, 83, and 84; also citing Wolffe v. Minnis, 74 Ala. 386; Davis v. Stowe Tp., 256 Pa. 86, 100 A. 529; Cooper v. U.S. Mut. Ben. Ass'n, 132 N.Y. 334, 30 N.E. 833, 16 L. R. A. 138, 28 Am. St. Rep. 582; G. H. & S. A. R. Co. v. Jackson, 92 Tex. 709, 51 S.W. 331; also quoting and underscoring the pages of Alabama Iron & Fuel Co. v. Benenante, 11 Ala. App. 644, 66 So. 944; Shelby Iron Co. v. Greenlea, 184 Ala. 496, 63 So. 470; and L. & N. v. Crow, 107 S.W. 808, 32 Ky. Law Rep. 1145. Counsel also stated that the Supreme Court of Alabama has repeatedly and in strong language condemned remarks of counsel less offensive and less offending than those used in this case, and has not hesitated to reverse cases where such improper arguments have been made, citing the following cases: East Tenn. V. & G. R. Co. v. Carloss, 77 Ala. 446; Wolffe v. Minnis, 74 Ala. 386; Florence Cotton & Iron Co. v. Field, 104 Ala. 471, 16 So. 538; Birmingham R. L. & P. Co., 175 Ala. 338, 57 So. 876; Forman v. State, 190 Ala. 27, 67 So. 583; Hutcherson v. State, 165 Ala. 16, 50 So. 1027, 136 Am. St. Rep. 17; Ethridge v. State, 124 Ala. 106, 27 So. 320; Manley v. Birmingham R. L. & P. Co., 191 Ala. 531, 68 So. 60; Jordan v. Austin, 161 Ala. 585, 50 So. 70; Galyeston H. & S. A. Ry. Co. v. Kutac, 72 Tex. 643, 11 S.W. 127.

The quotation noted above as taken from 203 Ala. 551, 84 So. 260, is as follows:

"Somerville, J. Confining our review to that particular portion of the argument of plaintiff's counsel which is above reported, we feel no hesitation in saying that it was highly improper, and should have been rebuked and excluded in the first instance, and that the action of the trial court in granting a new trial on that account ought to be, and must be, upheld. ***

"The implications of the language, and the animus of the appeal thus presented to the jury are unmistakable, and need no judicial exposition. Suffice it to say that similar statements and arguments have been several times condemned by this court, as they should always be. E. T., V. & G. R. R. Co. v. Carloss, 77 Ala. 443, 447; Florence, etc., Co. v. Field, 104 Ala. 480, 16 So. 538; B. R., L. & P. Co. v. Gonzales, 183 Ala. 273, 281-283, 61 So. 80, Ann. Cas. 1916A, 543.

"We need not consider other questions presented by the record."

Other quotations above referred to are as follows:

"But the tongue can no man tame; it is an unruly evil, full of deadly poison." James, iii, 8.

"There is a chorus of disapprobation from the courts, unmarred by the least dissonance, sonorously condemnatory of every misstatement of evidence, and of all statements of facts not in evidence and unwarrantably deduced from evidence, made by counsel in trials in addressing juries." L. R. A. 1918D, 7.

"No abuse of the privilege of counsel in argument to the jury is more frequent than an appeal to the passions and prejudices of its members, and none is less excusable or more irrelevant. It always involves a statement of a fact or facts not proved on the trial, and almost always of facts real or imaginary of which proof would have been incompetent. A willful and deliberate statement of a fact not in evidence inadmissible if offered, calculated and intended to create...