CSX Transp., Inc. v. Day

• Decision Date: 22 January 1993
• Parties: CSX TRANSPORTATION, INC. v. John W. DAY. 1911612.
• Court: Alabama Supreme Court

Page 883

613 So.2d 883

CSX TRANSPORTATION, INC. v. John W. DAY.

1911612.

Supreme Court of Alabama.

Jan. 22, 1993.

Charles E. Sharp and Joel A. Williams of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellant.

Frank O. Burge, Jr. of Burge & Wettermark, P.C., Birmingham, for appellee.

HOUSTON, Justice.

John W. Day suffered extensive and severe personal injuries when he was struck by a train while performing his duties as an employee of CSX Transportation, Inc. ("CSX"). Day sued CSX, seeking damages under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). The case was eventually tried to a jury, which returned an $800,000 verdict for Day. The trial court entered a judgment on that verdict and later denied CSX's motion for a new trial. CSX appealed. We affirm.

Three issues have been presented for our review:

1) Whether CSX is entitled to a new trial on the ground that Day was allowed to elicit testimony concerning settlement negotiations that took place between Day and CSX prior to trial;

2) Whether CSX is entitled to a new trial on the ground that Day was allowed to elicit testimony concerning, and to make a comment during closing argument with respect to, Day's eligibility for a pension; and,

3) Whether CSX is entitled to a new trial or, in the alternative, a remittitur of damages on the ground that the verdict is excessive as a matter of law.

The following colloquy between Day's attorney and Larry McClendon, the CSX agent assigned to handle Day's claim, is conclusive with respect to the first issue:

"Q. And at this time, you were negotiating with him trying to get him to settle, weren't you?

"A. I only had one meeting with him as far as any kind of settlement goes, as far as negotiations.

"Q. And you offered him a sum of money to settle without a job with the company, right?

"A. Yes, sir.

"Q. How much did you offer him to settle without a job with the company?

"[CSX's attorney]: We object to that, then, judge. We're going to get into a lot of other things.

"The court: Well, if you object, I sustain."

As this part of the record shows, CSX did not object when McClendon testified that he had made a settlement offer to Day. Although CSX contends that the admission of this testimony constituted reversible error, it is familiar law that an adverse ruling below is a prerequisite to appellate review. We generally cannot consider arguments made for the first time on appeal. Matthews Brothers Construction Co. v. Lopez, 434 So.2d 1369 (Ala.1983); see, also, cases collected at 2 Ala.Digest, Appeal & Error, § 169 (1955). CSX did object when McClendon was asked to reveal the amount of CSX's offer, and the trial court sustained that objection before McClendon could respond to the question. Accordingly, we can find no basis in the first issue for reversing the judgment.

With regard to the second issue, the record shows that Day was allowed to testify as follows concerning his eligibility for a pension:

"Q. And do you get a pension?

"A. No, sir."

The record also shows that Day's attorney made the following comment during his closing argument to the jury:

"The railroad was not negligent, and it was a situation created by Johnny Day. Now, that's what [CSX's attorney] says. And that makes just about as much sense as to what he says about the damages up here. If he had some--see, the reason he didn't bring an economist up here to speak to these exact figures and to talk about age 65 and life expectancy, and to talk about $466 a month now for medical insurance that was free before--losing 11.2 percent of your wages that was going to be put into a pension fund--he doesn't get a pension. He hasn't worked long enough to get a pension. But they--

"[CSX's attorney]: Judge, I'm going to object to that. We didn't go into that.

"The court: I sustain."

CSX contends that Day's references to his eligibility for a pension were highly prejudicial because, according to an affidavit introduced in support of CSX's new trial motion, Day will become eligible to receive a pension upon reaching age 60. CSX argues that Day's testimony and his attorney's comments during closing argument distorted the jury's perception of Day's damages by creating the impression that Day would never be eligible to receive a pension. Day contends that this issue, like the first one, was not preserved for appellate review. In the alternative, Day argues that his testimony was truthful because he was not receiving a pension at the time of the trial, and that his testimony was relevant with respect to the issue of his present financial condition.

The record shows that CSX did not object to Day's testimony regarding the pension. Therefore, we cannot consider whether the admission of this testimony constituted error. The record does show that CSX objected to the closing argument made by Day's attorney ("He hasn't worked long enough to get a pension") and that that...