Allison v. Acton-Etheridge Coal Co., Inc.

• Citation: 289 Ala. 443,268 So.2d 725
• Decision Date: 28 September 1972
• Docket Number: ACTON-ETHERIDGE,6 Div. 948
• Parties: A. Jack ALLISON v.COAL CO., INC., a corporation, and Clinton Starks.
• Court: Supreme Court of Alabama

Page 725

268 So.2d 725

289 Ala. 443

A. Jack ALLISON v. ACTON-ETHERIDGE COAL CO., INC., a corporation, and Clinton Starks.

6 Div. 948.

Supreme Court of Alabama.

Sept. 28, 1972.

Rehearing Denied Nov. 9, 1972.

Francis H. Hare, Birmingham, for appellant.

Norman & Fitzpatrick, Birmingham, for appellees.

HARWOOD, Justice.

A. Jack Allison sustained rather severe injuries in a collision involving his automobile and a coal truck belonging to Acton-Etheridge Coal Company, Inc., which at the time was being driven by Clinton Starks, an employee of the coal company.

The collision occurred at or near an intersection in the City of Birmingham.

Thereafter Allison filed suit against Acton-Etheridge and its employee Starks. The cause was submitted to the jury on two counts, one charging negligence, and the other charging wantonness.

The jury returned a verdict for the defendants, and judgment pursuant to the verdict was entered.

His motion for a new trial being overruled, Allison perfected this appeal.

Since the only point argued on this appeal relates to an alleged improper argument by counsel for the defendant (appellee) only a thumbnail sketch of the facts need be set out.

The evidence presented by the plaintiff (appellant) was directed toward showing that while his automobile was at a standstill in his proper lane the coal truck collided head on with it, knocking it over into the lane used by the truck; that it was dark at the time, and the truck had no lights burning. The plaintiff's evidence further tended to show that immediately after the accident neither of the headlights of the truck would burn, and that in one of the headlights 'there was no mechanism inside the headlight.'

The evidence presented by the defendants tended to show that the plaintiff's automobile was not at a standstill at the time of the collision, but in fact had veered from its lane over into the lane into which the truck was being properly driven, with the resulting head on collision. The defendants' evidence tended further to show that the point of impact was in the truck's lane, and that both vehicles were in the truck's lane after the collision, and that at the time of the collision there was sufficient daylight to drive by without the necessity of lights.

The appellant has made seven assignments of error. Assignment of error 1 is to the effect that the court erred in overruling appellant's motion for a new trial. Assignments 2, 3, 4, 5, and 7 clearly specifically assert error in the action of the court in overruling the motion for a new trial on those grounds going to the improper argument.

Assignment of error 6 is as follows:

'6. For that the court erred in overruling plaintiff's motion for a new trial on the ground that the verdict was so contrary to the great weight of the evidence as to indicate and show bias or prejudice on the part of the jury in favor of the defendants and against the plaintiff.'

At the threshold of his argument counsel for appellees contends that since the argument of counsel for the appellant is directed solely toward the alleged improper argument of appellees' counsel, and not toward the verdict being so contrary to the weight of the evidence as to indicate bias, it must be deemed that counsel for appellant has waived assignment of error 6 as being without merit. Counsel for appellees then asserts that the assignments of error are being grouped for argument, and one being without merit, consideration of all of appellant's assignments should be pretermitted. See Milwaukee Mechanic Ins. Co. v. Maples, 37 Ala.App. 74, 66 So.2d 159; Christ v. Spizman, 33 Ala.App. 586, 35 So.2d 568.

However, the rule is that if assignments argued in bulk are so related as to present a single question, it is proper to group them for argument, and even if one of the assignments be not well taken, review of the other assignments will not be pretermitted. Boohaker v. Trott, 274 Ala. 12, 145 So.2d 179. We consider all of the assignments of error made by the appellant to be sufficiently related and properly argued in bulk.

All of the assignments assert error in the action of the court in overruling the motion for a new trial, and all relate to the improper argument, or the verdict being the result of bias or prejudice. It is of course well settled that an assignment of error asserting that the court erred in overruling a motion for a new trial is a vicarious assignment as error of every well stated ground of the motion for a new trial which is adequately brought forth and argued in brief. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37; National Life & Accident Ins. Co. v. Allen, 285 Ala. 551, 234 So.2d 567.

In connection with the question of the improper argument by counsel for appellees the record shows the following which occurred shortly after counsel for appellees had begun his argument:

MR. NORMAN (attorney for defendant): * * *

It's a great thing, folks, to be a very wealthy man and to be able to go out here and hire two law firms with four lawyers--

MR. HARE (attorney for plaintiff): Just a minute. Just a minute. Just a minute, please, sir. Read this last argument. I want to make an objection to it.

(Whereupon the Court Reporter read the pending argument as requested.)

MR. HARE: We object to that.

THE COURT: I sustain the objection. Ladies and Gentlemen, I will say now that arguments of counsel is not evidence in this case. You are going to be called upon to decide this case from the facts that you hear from the witness stand, so don't consider--of course, that is not evidence, and I sustain your objection to that type argument.

MR. HARE: One other thing.

MR. NORMAN: We reserve an exception.

THE COURT: All right.

MR. HARE: You told them not to consider it evidence. I ask to charge them as improper argument.

THE COURT: I am going to say--I am asking him not to argue that anymore along those lines. Now go ahead.

In his oral charge to the jury the court made the following statement to the jury:

'I told you during the trial of this lawsuit that remarks made among counsel was not evidence in the case. Their arguments is not evidence in the case. It is their duty. It is their right to represent their clients to the best of their ability, and these gentlemen have done that. They have represented their client. That is their duty to do that.

'But as I say, you decide this lawsuit from the facts that you hear from the witness stand along with the exhibits that have been introduced in this lawsuit. You are not to decide this lawsuit upon any sympathy for anyone, nor are you to decide this lawsuit upon any prejudice against anyone, and you are not to go back there and guess, surmise.'

It is to be noted that the above instruction in no wise refers to the impropriety of defendant's counsel's reference to the plaintiff as a very wealthy man.

There are numerous decisions by this court, and the former Court of Appeals relating to the impropriety of argument of counsel for a plaintiff referring to the wealth of a defendant or the poverty of a plaintiff. We have not however found a case in this jurisdiction concerning a reference by defense counsel to the wealth of a plaintiff. Since the sine qua non of a trial is to obtain a true verdict or judgment based alone upon the evidence, any reference to wealth or economic condition of a party by opposing counsel is as invidious and prejudicial in the one instance as the other.

An excellent discussion on the question of improper argument to a jury is to be found in the often cited opinion of Crum, J., in Alabama Fuel & Iron Co. v. Benenante, 11 Ala.App. 644, 66 So. 942. Therein are gathered and discussed many of the Alabama cases on this question up to the time of that 1914 decision.

The following general principles were set forth by Judge Crum with quotations from supporting authorities, which citations we will omit.

'* * * When an attorney in the heat of debate, goes to such extraordinary lengths, generally, the court should promptly set aside any verdict that may be rendered for his client. The repressive powers of a court, to prevent such departures from legitimate argument of a cause before a jury, should be vigorously applied. No mere statement that it is out of order or improper can meet the exigencies of the case.

'Nothing short of a prompt, emphatic disapproval of such line of argument, and that from the court itself, can avert the probable mischief.

'The correction should have been as broad as the error committed.'

In Watson v. Adams, 187 Ala. 490, 65 So. 528, it was held that the mere exclusion of illegal evidence of insurance indemnity without more would not suffice to remove the high prejudice of its wrongful admission. The court noted that the obligation of the court to remove all possible prejudice from the minds of a jury enhanced in proportion to the subtle influence the prejudice might exert on the minds of the jury.

In the later case of Standridge v. Martin, 203 Ala. 486, 84 So. 266, ...