Davis v. Quattlebaum

• Decision Date: 18 October 1923
• Docket Number: 6 Div. 934.
• Citation: 210 Ala. 242,97 So. 701
• Parties: DAVIS, DIRECTOR GENERAL, v. QUATTLEBAUM.
• Court: Alabama Supreme Court

97 So. 701

210 Ala. 242

DAVIS, DIRECTOR GENERAL, v. QUATTLEBAUM.

6 Div. 934.

Supreme Court of Alabama

October 18, 1923

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action for damages by Fannie May Quattlebaum, as administratrix of the estate of Timothy Quattlebaum, deceased, against James G Davis, Director General, etc. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

THOMAS J.

The suit was by an administratrix for the death of the husband the result of personal injury, alleged to have been proximately caused by the negligence of defendant's agent while operating one of his engines.

The complaint was originally in four counts, of which counts 3 and 4 were eliminated by charges of the court. Count 1 lays the negligence to the engineer in charge or control of "said locomotive engine" in negligently causing or allowing plaintiff's intestate "to be thrown or precipitated from said locomotive engine or the tender thereof," etc.; and the gravamen of count 2 was "that her (plaintiff's) said intestate was knocked, shaken, or jolted from said locomotive engine or the tender thereof, and the said injuries and death were caused by reason of the negligence of a person in the service or employment of the defendants, to wit, Sam Schaefer, who had charge or control of said locomotive engine, namely, the said engineer of said engine negligently caused or allowed said locomotive engine to be suddenly or violently knocked, shaken, or jolted on the occasion aforesaid."

Defendant pleaded the general issue and in short by consent, and there was judgment and verdict for plaintiff.

It has been announced by this court that improper argument, not warranted by or based on the evidence ought not be indulged in by counsel, and should be eliminated from the consideration of the jury on timely objection. It is further established that there may be appeals to race and class prejudices that have been held to be ineradicable. In the instant case the bill of exceptions recites:

"Thereupon counsel for the plaintiff, in making closing argument to the jury said: 'Any concern that will put a witness like that on the stand (referring to Dr. Goodwyn), will go to any length to defeat this woman's honest cause.'

"Counsel for the defendant thereupon objected to said statement, made by counsel for the plaintiff to the jury, upon the ground that said argument was illegal, irrelevant, and improper, and moved to exclude the same from the consideration of the jury, but the court thereupon, in open court and in the presence of the jury, overruled said objection and refused to exclude the same from the consideration of the jury, to which action of the court the defendant then and there in open court, in the presence of the jury, duly excepted.

"Thereupon Mr. Beddow turned to counsel for defendant and addressing him said: 'Mr. Scrivner, I don't claim that you personally, did anything wrong; I have known you a long time, and don't believe you would."'

The argument objected to was more than a characterization of the reliability of the testimony of Dr. Goodwyn-it inferentially charges the defendant with going ...