Birmingham Electric Co. v. Ryder, 6 Div. 22.

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

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. [144 So. 19]

"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...