Central of Georgia Ry. Co. v. Purifoy

• Decision Date: 22 December 1932
• Docket Number: 6 Div. 263.
• Citation: 145 So. 321,226 Ala. 58
• Parties: CENTRAL OF GEORGIA RY. CO. v. PURIFOY.
• Court: Alabama Supreme Court

145 So. 321

226 Ala. 58

CENTRAL OF GEORGIA RY. CO. v. PURIFOY.

6 Div. 263.

Supreme Court of Alabama

December 22, 1932

Rehearing Denied Jan. 19, 1933.

Certiorari to Court of Appeals.

Petition of the Central of Georgia Railway Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Central of Georgia Railway Co v. H. M. Purifoy, 145 So. 323.

Writ denied.

The opinion of the Court of Appeals set forth the remarks of plaintiff's counsel as follows: "By some hook or crook the defendant has gotten by with this thing for seven years. *** I think there has been a lot of crook in this thing. They are seven years that have gone by. ***"

Nesbit Sadler & Dunn, of Birmingham, for petitioner.

W. A Denson, of Birmingham, opposed.

FOSTER J.

The opinion of the Court of Appeals shows that, while the circuit court overruled defendant's objection to the statement made by counsel for plaintiff in argument, no exception was reserved. But it is insisted that nevertheless it was proper ground for sustaining a motion for a new trial. When no exception is reserved to the ruling on defendant's objection to argument, it is good ground for a new trial only when the "remarks [of counsel] are of such a character that neither rebuke nor retraction can entirely destroy their sinister influence." Birmingham Ry., L. & P. Co. v Gonzalez, 183 Ala. 273, 287, 61 So. 80, 84, Ann. Cas. 1916A, 543; Anderson v. State, 209 Ala. 36 (20), 95 So. 171; Louisville & N. R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 104, 27 So. 760; Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389.

We do not think that the remarks of counsel, though improper if considered by themselves, and ought to have been excluded, were apparently of the class so described, especially when we consider those treated in such aspect in the following cases: Birmingham Ry., L. & P. Co. v. Gonzalez, supra, page 284 of 183 Ala., 61 So. 80, 83, Ann. Cas. 1916A, 543; Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534; Louisville & N. R. R. Co. v. Sullivan Timber Co., supra; Anderson v. State, supra.

When the remarks are not so inherently prejudicial as to be apparently ineradicable, but only so in connection with the other incidents of the trial, the primary consideration of such prejudice is for the Court of Appeals, and this court will not review its holdings in that respect unless the facts are sufficiently stated in the opinion of the court to show clearly that it misapplied the rule. Ex parte Steverson, 211 Ala. 597, 100 So. 912; Ex parte First National Bank, 206 Ala. 394, 90 So. 340; Birmingham Southern R. R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339.

That court held that in making the remarks counsel was replying in kind to an argument made for defendant, and averred that the bill of exceptions states that the argument to which it replied was "in respect to the length of time the case had been in court," but does not state just what was said in that connection. We certainly discover nothing in such situation, nor in anything else stated in the opinion, which would not make the effect of those remarks eradicable, if we should differ with the Court of Appeals that it was not objectionable for the reason stated.

The Court of Appeals does not hold that count 1 is not defective and subject to the demurrer assigned, but asserts that there was no prejudicial error in the ruling. Assuming that the count is subject to the defects discussed in Mobile Light & R. Co. v. Ellis, 207 Ala. 109, 92 So. 106; North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18, it states a cause of action, and, under such circumstances, the trial court by its rulings and its charge may require a finding by the jury of the omitted matter as a condition to recovery on that count. When that is done, there is ordinarily no prejudice resulting from the error in overruling the demurrer. Southern Ry. Co. v. Dickson, 211 Ala. 481, 100...