Alabama Steel & Wire Co. v. Sells

• Citation: 168 Ala. 547,52 So. 921
• Parties: ALABAMA STEEL & WIRE CO. v. SELLS ET AL.
• Decision Date: 01 February 1910
• Court: Alabama Supreme Court

52 So. 921

168 Ala. 547

ALABAMA STEEL & WIRE CO. v. SELLS ET AL.

Supreme Court of Alabama

February 1, 1910

Rehearing Denied June 30, 1910.

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by W. R. Sells, as administrator, and others against the Alabama Steel & Wire Company. From a judgment for plaintiffs defendant appeals. Affirmed.

Forney Johnston and Joel F. Webb, for appellant.

Stallings & Drennen, for appellees.

DOWDELL C.J.

The mere repetition, in brief of counsel for appellant, of the assignment of an error on the record, without more, has been repeatedly decided by this court not to amount to insistence in argument, and in such case the assignment will be regarded as waived. Birmingham Railway, Light & Power Co. v Oldham, 141 Ala. 200, 37 So. 452; B. R., L. & P. Co v. Landrum, 153 Ala. 192, 45 So. 201, 127 Am. St. Rep. 25, and other cases.

As a sample of the argument in appellant's brief, on many of the assignments of error, we quote the following: "The questions propounded by plaintiff to the witnesses (assignments 10, 16, 23, etc.), with reference to the condition of the mines at periods remote from the time of the accident, were improper." "The charges given at plaintiff's request were erroneous. Defendant's first charge should have been given. The second, fourth, eighth, ninth, tenth, eleventh, and twelfth charges refused to defendant were also clearly proper charges and should have been given." "Its rulings on demurrers to the complaint and sustaining demurrers to defendant's pleas were erroneous." This, in reality, is nothing more than a repetition of the assignment on the record, and, under the cases above cited, cannot be considered an insistence in argument.

All of the counts of the complaint counting on negligence of Anderson Donaldson, the fire boss, were withdrawn by the plaintiff, and with plaintiff's consent the evidence introduced under these counts as to the negligence of said Donaldson was excluded by the court. Exceptions reserved on the introduction of this evidence were thereby rendered unavailable.

The overruling of the motion for a new trial is assigned as error. The appellee contends that the motion was "not kept alive as required by law" in the court below, but was suffered to be discontinued by a failure to have the motion regularly continued on the docket. Whatever of force might otherwise be found in this contention, it is overcome by the fact that after the time of the alleged discontinuance the appellee consented to an amendment of the motion, and went to trial on it without objection. In this there was a waiver of the discontinuance. McCarver v. Herzberg, 135 Ala. 542, 33 So. 486.

One of the grounds for the motion for a new trial, and which is here separately assigned as error, that is insisted on in argument, and the only one that is argued with a degree of seriousness, relates to the remarks of counsel for plaintiff to the jury. The bill of exceptions, however, in this connection, recites that "no motion was made by defendant's counsel to exclude from the jury the remarks of plaintiff's counsel above stated. The court made no comment at any time with reference to the same, and did not rebuke counsel for...