Birmingham Electric Co. v. Ryder

• Decision Date: 06 October 1932
• Docket Number: 6 Div. 22.
• Citation: 144 So. 18,225 Ala. 369
• Parties: BIRMINGHAM ELECTRIC CO. v. RYDER.
• Court: Alabama Supreme Court

144 So. 18

225 Ala. 369

BIRMINGHAM ELECTRIC CO. v. RYDER.

6 Div. 22.

Supreme Court of Alabama

October 6, 1932

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by Agnes Ryder against the Birmingham Electric Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Plaintiff's attorney's argument referring to other verdicts and referring to defendant's attorney's breaking into argument for purpose of saving defendant money because plaintiff had them hooked required new trial, notwithstanding instruction to disregard remarks.

The bill of exceptions discloses the following with respect to the question propounded by plaintiff to witness Dr. Moore:

"Question. Doctor, assuming that she was injured on the 22nd of last May, and this is today the 14th of May, lacking eight days of being a year, you say you examined her a short time ago and said you found some evidences of injury, I will ask you to state if in your judgment the injury you found on the lady since you have been treating her is a permanent injury.

"Mr. Brantley. We object as not being properly hypothesized.

"Question. The injury you found on the lady since you have been treating her since May 22nd, 1930. Add that to it, stating to these 12 jurors whether or not in your judgment it is a permanent injury?

"Mr. Brantley. I object, not properly hypothesized is hypothesis has facts not in evidence, such as the statement he says the doctor stated, which I do not understand to have been his testimony.

"The Court. Overruled.

"Mr. Brantley. We except.

"Mr. Brantley. I object; not properly hypothesized; his hypothesis has facts not in evidence, such as the statement he says the doctor stated, which I do not understand to have been his testimony.

"The Court. Overruled.

"Mr. Brantley. We except.

"Answer. It would be impossible for me to say whether it is permanent or not. A nerve injury-the nerve tissue heals most slowly. The mere fact that the injury had not healed at this time don't necessarily mean it would not ever heal. The longer it goes, naturally the more one is inclined to think it could be permanent."

The following requested charge was refused to defendant: "24. The court charges you that if you are reasonably satisfied from the evidence that the plaintiff received her alleged injuries as the proximate result of a mere accident, your verdict should be in favor of the defendant."

In opening argument to the jury, plaintiff's counsel (Mr. Taylor) made the following statement: "Now, men, let me tell you one thing; you have been sitting on juries and have heard many cases around here, where they bring in twenty-five and fifty thousand dollars, and I want to tell you, and I want you to know-so long as I have been-"

Then the following was said and done:

"Mr. Brantley. Just a minute. I object to that statement as to what other juries have brought in as verdicts. That is an unfair argument; it ought to be what a proper verdict in this case would be, if any, and I object to that.

"The Court. I sustain the objection.

"Mr. Brantley. Now, I ask the court to instruct the jury that that is improper argument, and for them not to consider it.

"The Court. Gentlemen, don't consider it. And when I sustain the objection, or when I say 'sustained', that means the court thinks it is improper argument, and it has been laid down by our Supreme Court that anything which would appeal to prejudice it is my duty to try to eradicate it from your minds, or get it out of your minds, and the court lays that down as my duty, the Supreme Court, lays it down as my duty, so I tell you that anything about the other cases is improper argument, about the fifty or twenty-five thousand dollars; don't consider it. Eradicate it from your minds."

In further argument, counsel for plaintiff stated, in substance, that the jury could not restore to the plaintiff the good health enjoyed by her before the accident, but that the jury could put into effect something which would make the defendant "do better in the future," proceeding "You can say it by your verdict. And I don't mean ten or fifteen thousand dollars. No, men, don't do that. For God's sake don't you men bring in such a compromise proposition as that. I don't want it, and my client don't want it. You do your duty. ***"

Thereupon the following occurred:

"Mr. Brantley. Now, just a minute. I object to that argument on the ground that it is unfair argument, and it is incompetent, and I ask the court to so instruct the jury.

"Mr. Taylor. Let him read it.

"The Court. I have just told the jury.

"Mr. Taylor. Let him read it. Maybe the court didn't hear what I said.

"The Court. Well, you were talking pretty loud. But read it. Go back and read what he said. (The reporter read back from the argument.)

"Mr. Taylor. I don't see anything wrong with that.

"The Court. Were you about to say something more?

"Mr. Brantley. No, sir, I just wanted to make an objection to it.

"The Court. The court will tell you at the proper time that if there is a right of recovery, under the law, as I will give it to you, the jury should compensate the lady for her injury. I sustain the objection. Now, go ahead.

"Mr. Taylor. Gentlemen of the jury: Just any old thing,-let me tell you one thing, about the Birmingham Electric Company. They have got attorneys up here, and any old way to break into, when I get below the belt, and hit a lick that hurts and tell the truth, they break into my line of thought, and into my argument-just anything to save the company, men, when they are hooked.

"Mr. Brantley. I object to that.

"The Court. What is it?

"Mr. Brantley. I object to his argument that they break into the argument for the purpose of saving the company money, because he had them hooked, as being an appeal to the prejudice of the jury, and as putting me in an unfair and bad light with the jury.

"The Court. Counsel have a right, when they conceive that their rights, or their clients' rights are invaded, to make objections; the law gives them that right, and the court would be committing reversible error to withdraw that right from them; when they conceive that their rights under the law is being invaded, they have a right to object. That goes without saying. And I have just admonished you that anything that is an appeal to your prejudice is wrong. You are sworn to try the case according to the law and the evidence and without prejudice. Go ahead."

Lange, Simpson & Brantley, of Birmingham, for appellant.

J. K. Taylor and Chas. W. Greer, both of Birmingham, for appellee.

THOMAS J.

The suit was for alleged injuries sustained by a passenger alighting from defendant's street car. The action is predicated on negligence of the motorman in shutting the door and starting the car with a sudden jerk before plaintiff had time to alight.

Defendant pleaded the general issue in short by consent, and the verdict was for plaintiff.

The hypothetical question to Dr. Moore was challenged for the lack of a proper predicate that he had "examined her a short while ago and found some evidences of injury" still existed. That hypothesis of facts was not given in evidence, and rendered the question incompetent. Hamilton v. Cranford Mercantile Co., 201 Ala. 403, 406, 78 So. 401, and authorities; Birmingham Railway & Electric Co. v. Butler, 135 Ala. 388, 395, 33 So. 33; Parrish v. State, 139 Ala. 16, 36 So. 1012; Long Distance Telephone & Telegraph Co. v. Schmidt, 157 Ala. 391, 47 So. 731; Birmingham Electric Co. v. Glenn, 224 Ala. 620, 141 So. 537. The effect of the negative answer given to the amended question presents no reversible error-it did not show a permanent injury. De Kalb County v. McClain, 201 Ala. 565, 78 So. 961; Montgomery County v. Pruett, 175 Ala. 391, 57 So. 823; Smith v. Kaufman, 94 Ala. 364, 10 So. 229.

Refused charge 24 has been considered by this court. Montevallo Mining Co. v. Little, 208 Ala. 131, 93 So. 873; Williams v. Anniston Electric & Gas Co., 164 Ala 84, 93, 51 So. 385. This character of charge was held misleading in Norwood Transp. Co. v. Crossett, 207 Ala. 222, 224, 92 So. 461; Grauer v. Alabama Great Southern Ry. Co., 209 Ala. 568, 573, 96 So. 915; Smith v. Baggett, 218 Ala. 227, 229, 118 So. 283. These cases hold the trial court will not be reversed for the giving or refusal of such charge. Loreno v. Ross, 222 Ala. 567, 571, 133 So. 251. The decision in Boyette v. Bradley, 211...