Birmingham News Co. v. Payne

• Decision Date: 06 June 1935
• Docket Number: 6 Div. 460
• Citation: 230 Ala. 524,162 So. 116
• Parties: BIRMINGHAM NEWS CO. v. PAYNE.
• Court: Alabama Supreme Court

162 So. 116

230 Ala. 524

BIRMINGHAM NEWS CO. v. PAYNE.

6 Div. 460

Supreme Court of Alabama

June 6, 1935

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injuries by Inez Payne against the Birmingham News Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Lange Simpson & Brantley, of Birmingham, for appellant.

London Yancey, Smith & Windham and John W. Altman, all of Birmingham, for appellee.

THOMAS Justice.

The trial was had on amended counts A and B, declaring respectively for simple negligence and wanton conduct causing the injury. The pleadings of defendant were in short by consent, with the usual leave to give in evidence matters of defense that may be pleaded, and with the right of a due reply.

The order of presentation by appellant of alleged errors will be followed for the sake of convenience, and only those duly insisted upon will be considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

Arguments of counsel to the jury, requiring the granting of a mistrial, or the granting of a new trial on motion, must not only be (1) improper and illegal, but (2) of such prejudicial character as that its probable effect is ineradicable by exclusion and rebuke on the part of the court. Anderson v. State, 209 Ala. 36, 95 So. 171; F.W. Woolworth Co., Inc., v. Erickson, 221 Ala. 5, 127 So. 534; Pryor et al. v. Limestone County, 225 Ala. 540, 144 So. 18; Birmingham Electric Co. v. Ryder, 225 Ala. 369, 144 So. 18. There are illustrations of several classes of arguments of counsel condemned and held ineradicable under the circumstances of each case. They may be catalogued as follows: (1) There is no ironbound rule--each case rests upon its own facts, Anderson v. State, 209 Ala. 36, 95 So. 171; (2) arguments making reference to the wealth of defendant, Watts v. Espy, 211 Ala. 502, 101 So. 106; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Pryor et al. v. Limestone County, supra; Birmingham Electric Co. v. Ryder, supra; (3) where plaintiff's counsel, in arguing the case, said he knew defendant's attorney, and if he was on the jury, he would render a verdict for plaintiff in a large sum, Birmingham Railway, Light & Power Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas.1914C, 1037; (4) arguments without evidence that the defendant was protected by insurance indemnity, Standridge v. Martin, 203 Ala. 486, 84 So. 266; Birmingham Electric Co. v. Ryder, 225 Ala. 369, 144 So. 18; and (5) references or appeals to race or class prejudice, Moulton v. State, 199 Ala. 411, 74 So. 454; Sanitary Market v. Hall, 223 Ala. 525, 137 So. 435; Watts v. Espy, supra.

Cases of improper arguments held eradicable by due action taken by counsel and the court may be illustrated: (1) By arguments in a murder case, that if the defendant is declared insane, he would be released in due course of events, Anderson v. State, 209 Ala. 36, 95 So. 171; (2) by a statement of fact outside the evidence, to the effect that a defendant who would put a witness like that on the stand would go any length to defeat an honest claim, Davis, Director General, v. Quattlebaum, 210 Ala. 242, 97 So. 701; (3) by the question of whether witness had been arrested elsewhere, Milton v. State, 213 Ala. 449, 105 So. 209; (4) questions to show plaintiff in a damage suit had a family, Tennessee Coal, Iron & R. Co. v. Spicer, 206 Ala. 141, 89 So. 293; (5) by arguments outside the record, as that customers fell on an oily and dusty floor of a store, F. W. Woolworth Co., Inc., v. Erickson, 221 Ala. 5, 127 So. 534; and (6) by arguments beside the record as to personal relationship between attorney and client, F.W. Woolworth Co., Inc., v. Erickson, supra.

It is further established in this jurisdiction as to argument that is improper, yet its influence is eradicable when objection is made and sustained, that the trial court will not be put in error for failure to more fully and adequately charge or instruct the jury by way of eradication, unless additional action by the court is duly requested, or due motion made and predicated thereon. Alabama Fuel & Iron Co. v. Williams, 207 Ala. 99, 104, 91 So. 879; City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 664; Kansas City, Memphis & Birmingham R. Co. v. Webb, 97 Ala. 157, 11 So. 888; F.W. Woolworth Co., Inc., v. Erickson, 221 Ala. 5, 127 So. 534; Anderson v. State, 209 Ala. 36, 95 So. 171.

In the instant objection, counsel was merely expressing an opinion as to the medical work offered in evidence after predicate was duly laid and after its exhibition and inspection by the witnesses. It is true that on formal introduction in evidence the title page was not offered in evidence on the part thereof that was indicated as germane. It was, therefore, not unnatural that appellee's counsel should have made reference to that work and its author, which was in the class of invited comment. McQueen v. Jones, 226 Ala. 4, 7, 145 So. 440. The court instructed the jury to disregard the observation or argument as to this, and this was sufficient.

Further objection was made as to argument of counsel calling for a substantial verdict by way of punishment, made the basis of the wanton count. We are of opinion the argument as made was improper and prejudicial, and should not be indulged in on another trial. However, the case will be reversed for error in introduction of the evidence by Dr. Littlejohn to be discussed later.

We may further observe that defendant's counsel, after saying to the jury in argument, "He wants to get something to prejudice this jury. *** He wants you to return a verdict against me in this case because I went and got a book that treats this thing in a clear way, and because he finds the word insurance there, and he knows some people don't like insurance companies and railroad companies," proceeded to discuss the book in evidence. Aside from this argument, and as a reply thereto (the wanton count was submitted to the jury under the evidence), and this appeal made for punishment by way of damages for wanton conduct, the argument in question (assignment of error 21) was prejudicial error, as we have indicated.

The further error in argument urged is stated in the record as follows:

"Mr. Windham: *** I want to say to you in frankness and fairness,--I know you gentlemen want to be honest and fair in this case,--but in view of the fact this woman will never have another opportunity to recover for these injuries, I would rather you would have a mistrial and not award any verdict in this case and let it go to another day and to another jury, and let that jury fix the amount, than to go in the jury room and award some small sum like five or ten thousand dollars, and say to her that is all, during the whole of your life, you will ever receive for the wrecking of your body, and for the disrupting of your nerves and for the tearing down and breaking up of your mind; that is all you will ever get.

"Mr. Simpson: If the Court please, if the Gentleman has concluded with that statement, I object to that statement that he would rather they would have a mistrial than have a small verdict, as a statement of his opinion.

"The Court: Overrule the objection.

"Mr. Simpson: We except.

"Mr. Windham: I will amend my own argument at my own volition, if the Court will allow me. I will modify it to say in my judgment it would be better for this plaintiff from the facts and from the evidence that it should be that way.

"I thank you for your attention, gentlemen."

The voluntary retraction or change of statement by plaintiff's counsel did not substitute the opinion or judgment of counsel for that of the jury, or did not improperly argue for a mistrial. To use the language of Mr. Chief Justice Stone, "In addressing the jury, counsel must be allowed [within legitimate bounds] to select and pursue their own line of argument, their own methods of dealing with the testimony." This right is secured to parties at interest before the court by the Constitution (Const.1901, § 10). Cross v. State, 68 Ala. 476, 481; Beaird v. State, 219 Ala. 46, 121 So. 38. In such a matter much discretion is allowed to trial courts, in and necessary to a due and orderly procedure, and in the accord of the right of due process. Bass v. State, 219 Ala. 282, 122 So. 45; Phillips v. Ashworth, 220 Ala. 237, 124 So. 519; Frost v. State, 225 Ala. 232, 142 So. 427; Peterson v. State, 227 Ala. 361, 150 So. 156.

In this connection it may be remarked that Miss Findley had testified for plaintiff, and on her cross-examination stated she had just approached the crossing and was a little upon the intersection when stricken; that it was raining; that she parked her car and came back and looked at the number of the truck that had run into her from the rear, and asked its driver "Why he hit me"; that "he didn't want to talk to me," but "said he didn't see me until he hit me," whereupon the following proceedings occurred:

"Q. Did I ask you that? Why did you

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