Alabama Great Southern R. Co. v. Swain

• Citation: 248 Ala. 535,28 So.2d 714
• Decision Date: 16 January 1947
• Docket Number: 6 Div. 495.
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. SWAIN.
• Court: Supreme Court of Alabama

28 So.2d 714

248 Ala. 535

ALABAMA GREAT SOUTHERN R. CO. v. SWAIN.

6 Div. 495.

Supreme Court of Alabama

January 16, 1947

Beners Burr, Stokely & McKamy and Greye Tate, all of Birmingham for appellant.

Taylor Higgins, Koenig & Windham, of Birmingham, for appellee.

The following charges were refused to defendant:

39. 'The damages in this case are solely by way of punishment and the jury has the right to take into consideration all the facts and circumstances surrounding the accident, the speed of the train, the conduct of the fireman and the engineer, the conduct of the driver of the truck on the occasion complained of in determining whether or not a large or small fine shall be assessed against defendant in the event a verdict is rendered against the defendant.'

'26. If after a consideration of all the evidence the jury should determine to award plaintiff damages, they cannot in estimating the amount consider the pecuniary value of the life of the deceased, but can only award damages by way of punishment to the defendant, and if the jury believe that damages in a small amount will be sufficient punishment for the acts of its employees it would be unjust to award damages in a large amount.'

29. 'I charge you that before you can award the plaintiff any damages in this case you should be reasonably satisfied from the evidence that the conduct of the defendant's servants, agents or employees was such conduct as deserves the imposition of punishment, and if you should be reasonably satisfied from the evidence that the conduct of the defendant's servants, agents or employees does not deserve punishment then your verdict should be in favor of the defendant.'

GARDNER Chief Justice.

The suit is by the father under our homicide statute, Title 7, § 119, Code 1940, for the death of his minor child--three years of age. From a judgment for the plaintiff defendant appeals.

Plaintiff's child was a passenger in a truck driven by its grandfather. The defendant's 'streamlined' passenger train en route from Meridian, Mississippi, to Birmingham, Alabama, which was being operated at the time under a 'run late order of 20 minutes,' collided with the truck in the city of Bessemer, at the 15th Street Crossing at about 2:30 P.M., on September 2, 1945; the weather was clear and dry. All five passengers were killed, and the truck fastened to the pilot of the engine. This was a populous crossing, so known to the engineer and fireman, with a speed limit by City ordinance of 15 miles per hour. Confessedly the train was running at a speed of 45 to 50 miles per hour, though plaintiff offered proof to show a speed in excess of that mileage.

The trial was had upon counts A and B, the first alleging simple negligence and the second wanton conduct. That the evidence justified the submission of the issues under both counts to the jury is not questioned on this appeal. Nor was there involved any question of contributory negligence.

The only matters, therefore, of consequence here are those relating to the amount of recovery.

The first three assignments of error relate to the refusal of charges requested by defendant, numbered 39, 26 and 29, which appear in the report of the case. These charges deal with the punitive character of the action, upon which the trial judge in a clear, but more general language had instructed the jury.

But the question of the sufficient coverage by the oral charge of the court laid aside and undetermined, we conclude the court was justified in refusing the charges. Under recent decisions of this court these charges were misleading on account of their use of criminal terminology in dealing with the question of recoverable damage. That charges of this character may properly be refused as misleading was expressly decided in Hampton v. Roberson, 231 Ala. 55, 163 So. 644, following the language of the opinion in Esdale v. Baxter, 219 Ala. 256, 122 So. 12. To like effect, see Mobile L. & R. Co. v. Nicholas, 232 Ala. 213, 167 So. 298 (treating charge 43); Williams v. Wicker, 235 Ala. 348, 179 So. 250 (considering charge A-7); Claude Jones & Son v. Lair, 245 Ala. 441, 17 So.2d 577 (discussing charge 19); and Patrick v. Mitchell, 242 Ala. 414, 6 So.2d 889, justifying refusal of charge 2.

Counsel for defendant lay much stress upon Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642, wherein the opinion discusses given charge 8. It will be observed that the opinion discloses upon its face that in view of the fact there was judgment for defendant there was no necessity for a treatment of this charge. What was said, therefore, in regard thereto was dictum. And, in addition, we think it clear enough the discussion by the learned author of the opinion discloses that the question of criminal terminology was not in mind, nor called to the attention of the court in considering this charge. The author was in reality considering the feature of the charge which justified an instruction to the jury that they should as of course consider the conditions surrounding and affecting the act of defendant's agent in determining the question of punitive damages. And, in Graham v. Werfel, 229 Ala. 385, 157 So. 201, there was a general reference to a charge of similar character as having been approved in the Karpeles case. We think, however, the more recent cases above noted clearly indicate the view of the court that charges of this nature are misleading and may properly be refused. Defendant can, therefore, take nothing by these assignments of error.

The remaining questions presented in brief relate to objections interposed to argument of counsel for plaintiff to the jury. The objection in each instance was sustained by the trial court and we are, therefore, not concerned primarily with the propriety vel non of the argument. The court not only sustained the objection, but admonished the jury they were not to consider the argument to which objection was interposed and sustained. This was not done in a perfunctory manner so far as we read it from the record, but the language was clear and emphatic. The proof tends to show the truck demolished by the collision had come to a full stop just prior to going upon the track, and the indications are this stop was for the passage of a freight train. Immediately upon the passage of the freight train the truck proceeded and was struck by the passenger train traveling at an unlawful speed as recognized by the engineer. The proof was that five persons were killed in this accident and their bodies scattered along the track. One witness states he saw one hand and, also, some intestines along the track. The mere recital of the resulting facts suffices, without more, to disclose the tragedy of this collision.

The court having sustained the objections of defendant to the argument, as we have observed, the sole question for consideration is whether or not the argument was of such a character as that any harmful effect was ineradicable under the line of authorities noted by counsel for defendant. Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Watts v. Espy, 211 Ala. 502, 101 So. 106; Moore v. Holroyd, 219 Ala. 392, 122 So. 349; Alabama Fuel & Iron Co. v. Benenante, 11 Ala.App. 644, 66 So. 942.

We have frequently stated in our decisions where argument is grossly improper and highly prejudicial to the opposing party neither retraction by counsel or exclusion or rebuke by the trial court can destroy its sinister influence. Watts v Espy, supra; Prudential Ins. Co. v. Calvin, supra; Metropolitan Life Ins. Co. v. Carter, supra. Though there appear to have been four separate objections to argument of...