Alabama Power Co. v. Goodwin

• Citation: 214 Ala. 15,106 So. 239
• Decision Date: 22 October 1925
• Docket Number: 7 Div. 537
• Parties: ALABAMA POWER CO. v. GOODWIN.
• Court: Supreme Court of Alabama

106 So. 239

214 Ala. 15

ALABAMA POWER CO. v. GOODWIN.

7 Div. 537

Supreme Court of Alabama

October 22, 1925

Rehearing Denied Nov. 19, 1925

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

Action for damages for personal injury by Dora Brindley Goodwin against the Alabama Power Company. From a judgment for plaintiff for $20,000, defendant appeals. Reversed and remanded conditionally.

O.R Hood and Dortch, Allen & Dortch, all of Gadsden, and Martin Thompson, Foster & Turner, of Birmingham, for appellant.

Goodhue & Lusk, of Gadsden, for appellee.

THOMAS J.

This is the second appeal. 210 Ala. 657, 99 So. 158. The case of the husband for injury to the wife is Alabama Power Co. v Goodwin, 210 Ala. 388, 98 So. 124, and was affirmed. The court judicially knows its own records in said case. N.C. & St. L.R. Co. v. Crosby, 194 Ala. 338, 350, 70 So. 7. Therefore it knows that the last verdict was materially in excess of the former. The several assignments of error insisted upon in argument are sought to be considered in the order of presentation by counsel. The counts of the complaint as amended are not subject to the grounds of demurrer assigned thereto and insisted upon in argument of counsel.

It is urged that the trial court should have set aside the verdict of the jury on grounds assigned in appellant's motion for a new trial. We come to consider the ground that counsel for plaintiff, in making the closing argument to the jury on behalf of the plaintiff, said: "I would be willing to have defendant's lawyers on the jury." At this point in the argument defendant objected, the court sustained the objection, excluded the statement from the jury, and said to the offending counsel: "Confine yourself to the evidence," and exception was reserved. The remark of counsel is not within the class of highly prejudicial remarks, and its probable effect on the jury held to be ineradicable "by exclusion and rebuke of counsel." Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 133; A.G.S.R. Co. v. Grauer, 212 Ala. 197, 102 So. 125; Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; Watts v. Espy, 211 Ala. 502, 101 So. 106.

The observation of counsel to which exception was taken, though highly improper, was different from that discussed in B.R.L. & P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas.1914C, 1037. There the statement was:

"I know that if he [counsel for defendant] was on the jury trying this case that he would render a verdict in favor of the plaintiff in a large amount."

This was a statement of fact of which there was no evidence and of which evidence would not have been admissible if offered. The instant exception is based not upon a statement of fact not in evidence, but a mere expression of opinion by plaintiff's counsel that was improper, and which was excluded, and counsel duly rebuked therefor by the court in the presence of the jury. Each case of this character must be decided upon its own merits. Anderson v. State, 209 Ala. 36, 95 So. 171; Milton v. State (Ala.Sup.) 105 So. 209; B.R.L. & P. Co. v. Gonzales, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543; T. R. Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266.

A ground insisted upon by appellant is that the trial court committed reversible error in permitting plaintiff to testify of her medical treatment while in the hospital under defendant's care. The evidence of her taking purgatives while in the hospital was without objection. It was relevant as tending to show her physical condition and treatment while confined by her injuries, and also relevant as showing an effect of those injuries or the confinement in the hospital as to the colitis with which she suffered. If it had not been material as a part of plaintiff's hospital treatment as shown by her testimony and that of Dr. Benedict, no reversible error would have intervened at the trial, since there was no objection to the evidence on its introduction. Provident Life & Accident Ins. Co. v. Priest (Ala.Sup.) 103 So. 678. There was no error in declining to allow the witnesses Martin and Summerlin to testify that Taylor, the motorman operating the car in question, was a careful operator, or had never had an accident in the operation of a street car, or was a careful and prudent motorman, etc. The witness Martin had qualified as an expert, and had testified that he had seen Taylor operating the street car as motorman, and that he was a "skilled operator." The objection to defendant's question whether he was a negligent or a careful operator as a motorman was properly sustained for the reason stated by the court to counsel:

"You have shown that he was a skillful operator; that is as far as you can go. You have already shown that." Montgomery L. & T. Co. v. Devinney, 200 Ala. 135, 75 So. 883; Montgomery & W.P.R. Co. v. Edmonds, 41 Ala. 667.

The questions of authority of an agent or ratification by the principal were the subject of U.S.F. & G. Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A.L.R. 520, and not applicable to the instant rulings on evidence.

So also it was not competent for defendant to show by way of mitigation of damages that it promptly discharged from its service the offending motorman causing or responsible for plaintiff's injuries. 10 C.J. 1044; 27 C.J. 1433. There was no issue in this case of incompetence of the motorman, as was discussed in First Nat. Bk. of Montgomery v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am.St.Rep. 39.

The fact was given in evidence that defendant provided the maintenance, treatment--medical or surgical--of plaintiff in the hospital. There was no error in denying defendant the right to go into details as to that attention and the expense thereof. No question of set-off was or may be presented in that behalf.

Refused charges 1 and 3, requested by defendant, are assigned as error. The court in the oral charge did not embrace the matter sought to be thus presented, and was invoked thereto by the special charges. City of Montgomery v Ferguson, 207 Ala. 430, 93 So. 4. The office of the charges was to call to the attention...