Birmingham Elec. Co. v. Perkins

• Decision Date: 31 July 1947
• Docket Number: 6 Div. 605.
• Citation: 31 So.2d 640,249 Ala. 426
• Parties: BIRMINGHAM ELECTRIC CO. v. PERKINS et al.
• Court: Alabama Supreme Court

31 So.2d 640

249 Ala. 426

BIRMINGHAM ELECTRIC CO. v. PERKINS et al.

6 Div. 605.

Supreme Court of Alabama

July 31, 1947

Lange Simpson, Robinson & Somerville, of Birmingham, for appellant.

Francis H. Hare, of Birmingham, for appellees.

The following charge was refused to defendant:

'7. If you are reasonably satisfied from the evidence that as the defendant's bus was driven southwardly along 21st Street the car which the plaintiff was driving was cut to the left in front of said bus so shortly in front of the bus that the bus driver, in the exercise of reasonable care, skill and diligence under the circumstances, could not avoid the collision and consequent injury, then and in that event your verdict should be in favor of the defendant.'

LAWSON, Justice.

On March 27, 1945, there was a collision between an automobile driven by Eugene Perkins, Jr., and a bus belonging to the Birmingham Electric Company (hereinafter sometimes referred to as the Electric Company) at the intersection of 21st Street and Avenue A in Birmingham. The automobile was owned by the driver's sister-in-law, Mrs. Juanita Perkins, who was in the car at the time of the collision. Just immediately prior to the collision both vehicles were proceeding in a southerly direction on 21st Street and the collision occurred as the Perkins car was being turned left into Avenue A.

Eugene Perkins, Jr., and Mrs. Juanita Perkins at the time of the collision were en route to the Perkins family home near Goldsboro, North Carolina, from Texarkana, Texas, where they had been to see Mrs. Juanita Perkins' husband, who was in the Army and who had been ordered to overseas duty.

Eugene Perkins, Jr., brought suit against the Electric Company claiming damages for personal injuries alleged to have been sustained by him as a result of the accident. Mrs. Juanita Perkins also filed suit against the Electric Company to recover damages for personal injuries and for property damage to her automobile.

The two cases were consolidated and tried together in the circuit court of Jefferson County. § 221, Title 7, Code 1940.

The trial of these cases resulted in separate verdicts in favor of the plaintiffs. Eugene Perkins, Jr., received a verdict in the amount of $250. The verdict for Mrs. Juanita Perkins was in the amount of $750. There was judgment in each case in accordance with the verdict. Motions for new trials having been overruled, the Electric Company has prosecuted appeals. Both appeals are presented here on the same record.

The trial court did not commit reversible error in refusing to give defendant's requested Charge No. 7. It gives undue prominence to one phase of the evidence. Aplin v Dean, 231 Ala. 320, 164 So. 737; Birmingham R., Light & Power Co. v. Jones, 146 Ala. 277, 41 So. 146. This charge also contains the vice that it predicates nonliability on inability to avoid the collision after the automobile was cut to the left in front of the bus and ignores evidence of initial negligence. Birmingham R., Light & Power Co. v. Broyles et al., 194 Ala. 64, 69 So. 562.

The other assignments of error which are argued in brief of counsel for defendant (appellant) deal with alleged prejudicial remarks made by counsel for plaintiffs during the examination of witnesses and in his argument to the jury.

Prior to argument counsel for defendant moved for mistrial on two occasions on the ground that certain remarks made by ounsel for plaintiffs were so prejudicial to defendant that the trial should be discontinued. Although the trial court refused to take the case from the jury it did sustain defendant's objections to the statements and when request was made the statement was excluded. Of such favorable rulings the defendant cannot complain here. Alabama Great Southern Railway Co. v. McFarlin, 174 Ala. 637, 56 So. 989. But if the remarks of counsel were so grossly improper and highly prejudicial that the wrong done was beyond remedy through action of the trial court, then the defendant is entitled to a new trial. Birmingham R., Light & Power Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas.1914C, 1037; Pryor et al. v. Limestone County, 225 Ala. 540, 144 So. 18; Sinclair v. Taylor, 233 Ala. 304, 171 So. 728. The cases last above cited dealt with statements of counsel in argument but the rule of those cases is likewise applicable to statements made in the presence of the jury otherwise than in summation. By motions for mistrial and in motions for new trials the defendant in effect raised the point that the remarks were of such nature that neither retraction nor rubuke could have destroyed their influence.

We are called upon, therefore, to determine whether or not these remarks were so erroneous and prejudicial that the same probably influenced the jury to the prejudice of the defendant. Mobile Light & R. Co. v. Gallasch, 210 Ala. 219, 97 So. 733. The trial court was present and was an eyewitness to all of the proceedings and in overruling the defendant's motions in effect found that the remarks were not prejudicial to the defendant. Therefore the action of the trial court in denying the motions for mistrial and in overruling the motions for new trials will not be disturbed by this court unless it affirmatively appears from the entire record that the statements involved were probably prejudicial to the defendant, either as to result or the amount of damages assessed. Mobile Light & R. Co. v. Gallasch, supra; Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165.

The first statement of counsel for plaintiffs of which defendant complains was made to counsel for defendant during the cross-examination of Miss Betty Pullen, a witness for the defendant. The statement was, 'You are not an awful bad man, you are just smart. You are trying to tell the witness how to answer the question.' But defendant in assigning the above statement as error has picked it from its setting. An examination of the record discloses that the above remark was made in answer to a statement made by Mr. Simpson, counsel for defendant, as follows: 'Mr. Simpson may be an awful bad man.' These were only two of several statements made by counsel for both parties at this stage in the proceedings. Actually counsel for defendant did not invoke any ruling of the trial court on the particular remark of counsel for plaintiffs here involved. But an objection was sustained as to another statement made about the same time. We do not think the remark of counsel for plaintiffs above set out was such as to require that the case be taken from the jury or that a new trial be granted.

The other statement made by counsel for plaintiffs during the examination of witnesses about which defendant complains in brief was as follows: 'He has got what is called a Sears-Roebuck brand of interrogatories, about 75 of those things, and asking a man to make answer to each of them--he don't have to answer them that way.' This statement was made by counsel for plaintiffs while counsel for defendant was cross-examining the plaintiff Eugene Perkins Jr., as to answers which the witness had made...