Alabama Power Co. v. Berry, 6 Div. 511.

• Decision Date: 30 October 1930
• Docket Number: 6 Div. 511.
• Parties: ALABAMA POWER CO. v. BERRY ET AL.
• Court: Alabama Supreme Court

130 So. 541

222 Ala. 20

ALABAMA POWER CO. v. BERRY ET AL.

6 Div. 511.

Supreme Court of Alabama

October 30, 1930

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Condemnation proceeding by the Alabama Power Company against W. A. Berry and S. L. Berry. From the judgment, plaintiff appeals.

Affirmed.

$1,500 damages for power line right of way 100 feet wide and half mile in length, through approximately center of 149 1/2-acre tract, held not excessive.

Following the objection interposed by plaintiff to the question propounded by defendants, on cross-examination, to witness Burgess, defendants' counsel made the following argument to the court, in the presence of the jury, the bill of exceptions reciting, "Counsel for applicant did not request the court to have the jury to retire."

"Apart from the question of compensation, it is a burden to a man to be under the necessity of recovering that compensation, and if they in maintaining this line go through a man's yard break down his hedge, or go through his field and beat down his cotton crop, or go through his field and break his fences down that is a compensation for which recovery can be had but the mere fact that that thing is going to occur is in and of itself a burden to this land and the damage to it, which increases the damage done by the taking of this hundred feet.

"Suppose a man gets two dollars worth of damages, he has to pay twenty-five dollars to recover that two dollars.

"We propose to show that there are times when in the ordinary construction and maintenance of these lines they do go on other lands, and as tending to increase the compensation of which they learned friend speaks in the event there is any, as if there was a question whether there will be any damage. We are aware that a separate injury is a separate cause of action, and we are aware that if a man does you a wrong you can make him pay for it, but it will be true in order to get $35.00 worth of damages you have to spend fifteen or twenty-five dollars to get that. In the construction and maintenance, the question is whether they go over other lands with the wagons and teams and trucks.

"We propose to show by this witness or others, in the maintenance of this line they do not confine themselves to what learned counsel say their rights to go on it and do what he says are wrongs, and that they must pay in this proceeding for these injuries and something different from that, and I think the distinction is clear-the damage to the remainder of the land, the resulting injury, or having persons on this right of way, and this structure what is there now, and what may be there thereafter. We submit, that such things injures the market value and the right of an enjoyment of the property. The fact that he can recover in it is not all there is to it; it is as I said before, a tremendous burden to have to sue a neighbor every day, and just the fact that he is a neighbor in and of itself injures the market value of your property.

"Now, we submit, your Honor please, that apart from the actual damage done by each trip across that field, the fact that it is to be done injures the market value of the remaining land-if that is not clear and sound I don't know what is. It is the depreciation of the value of this land resulting from the proximity to it of this line."

Thereupon counsel for the applicant stated to the court:

"It is a prejudicial statement, and if there is a continuation of it, I will make a motion and earnestly insist on it; I am sorry Brother Jones thinks we are such troublesome neighbors, and I think he is dealing in his splendid imagination. I wish he had more experience with us. I don't think he would look on us with so much horror; however, I think the horror is originated for the purpose of this case. I think it is highly improper, and we insist on our motion and objection to the question and that style and that nature of argument."

The bill of exceptions further recites:

"Then Mr. Jones, counsel for the defendants, in the presence of the jury said: (Counsel for petitioner did not request that the jury retire during this argument.)

"'Counsel says he is afraid we have a horror, and says he wished we had more experience with him. I will assume that he knows their method of proceeding, and knows if I knew it I would find it to be different. In so far as imagination is concerned, we submit, your Honor, that we will prove that they do these things systematically.'

"Thereupon counsel for the applicant moved the court to grant a mistrial on account of the highly prejudicial statements made by counsel for the defendants in the presence of the jury.

"Then Mr. Jones, counsel for the defendants, in the presence of the jury made the following statement: (No request made that the jury retire during this argument.)

"'If your Honor is going to entertain that motion, I want to be heard further: Suppose your Honor is looking for a residence. There is a residence, and construction and location of which suits you very well. There is a very disorderly family living nearby, or a lot of families that are liable to come over on you and injure you, and you say to the owner-"I do not want that place because I will have trouble with these people." I will say to you "you need not sit back on that account, every time they do you an injury like that you can make them pay for it, go on the take the place." That is about the logic of his argument. With the fact that you can recover for an injury that accompanies the use of this line renders competent testimony that these kind of injuries will occur. In his statement to the jury by counsel appearing for them, said that the jury will determine here the damages done to the adjacent land by the building and maintaining perpetually, forever, of this line. Now if the maintenance of this line does involve injury to the remaining property, even though that actual injury in dollars and cents can be recovered, that is all that can be recovered, unless it is willful, we submit that injures the value of this property to a large extent. And as I stated before, that proposition is sound, and not imaginary; we are asking now to ask this witness if those things are not actually done.'

"Then counsel for the applicant objected to the foregoing statement being made in the presence of the jury (said objection being made after the statement was made).

"Thereupon the court overruled the applicant's motion for a mistrial and sustained the objection to the question at this time. The applicant then and there duly and legally excepted to the action of the court in overruling its motion for a mistrial."

The jury returned a verdict fixing the damages and compensation of defendants at $1,500. There was judgment accordingly, from which plaintiff, applicant, appeals.

Assignments of error 2 and 3 are as follows:

"2. The court erred in overruling appellant's objection to the following question asked appellant's witness, R. B. Burgess, on cross-examination: 'Q. You didn't while there engaged in the construction of the line pay very much attention to anything except the construction of the line?'

"3. The court in overruling appellant's objection to the following question asked appellant's witness, E. C. Thompson, on cross-examination: 'Q. Don't you know anything that, even human, cannot be regarded as always automatic?"'

Harwood & McQueen of Tuscaloosa, and Martin, Thompson, Turner & McWhorter, of Birmingham, for appellant.

H. A. & D. K. Jones, Clarkson & Penick, and Wright, Warren & Searcy, all of Tuscaloosa, for appellees.

BROWN J.

The general rule is that argument of counsel, made to the court on the law of the case, or in respect to the admissibility of proffered evidence, though it involves a statement of facts in the presence of the jury, may not be made the predicate for error, or grounds for a new trial. Louisville & Nashville R. R. Co. et al. v. Cross, 205 Ala. 626, 88 So. 908.

A well-recognized exception to this rule is, that such argument or statement persistently made, or improper questions asked in defiance of the ruling of the court, by counsel, intentionally for the purpose of getting before the jury facts or statements not admissible, and calculated to prejudice the judgment of the jury, demands prompt interference of the court, and a verdict obtained by such practice should not be allowed to stand. Birmingham Nat. Bank v. Bradley, 108 Ala. 205, 19 So. 791; Alabama G. S. R. R. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, 100 So. 342.

On cross-examination of appellant's witness Burgess, who had charge of the work of constructing the power line over the right of way here involved, after he had testified "the equipment necessary in building this line was teams tractors, trucks and wagons; these wagons and teams go out on the line on the right of way and do the work, so much as we can where we can," was asked, "And where they can't they go over the adjoining property of the land owner, do they not?" The appellant objected to this question "as calling for evidence that was irrelevant, immaterial and...