Birmingham News Co. v. Payne, 6 Div. 460

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

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. [162 So. 117]

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 [162 So. 118] 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...