Estis Trucking Co., Inc. v. Hammond

• Decision Date: 08 August 1980
• Citation: 387 So.2d 768
• Parties: ESTIS TRUCKING COMPANY, INC., a corp., et al. v. Gordon HAMMOND et al. 78-672.
• Court: Alabama Supreme Court

Page 768

387 So.2d 768

ESTIS TRUCKING COMPANY, INC., a corp., et al. v. Gordon HAMMOND et al.

78-672.

Supreme Court of Alabama.

Aug. 8, 1980.

Rehearing Denied Sept. 19, 1980.

Bert P. Taylor of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellants.

Watson, Moore & Chestnut, Huntsville, and J. C. Kellett of Kellett & Gillis, Fort Payne, for appellees.

FAULKNER, Justice.

This case arose out of an automobile-truck accident which occurred in DeKalb County on July 26, 1976, near an intersection of Alabama Highway 75 and DeKalb County Highway 72. The jury returned a verdict for the plaintiffs. Defendants' motion for new trial was denied. We reverse.

Frankie Langley, employed by Estis Trucking Company, Inc., was driving a coal truck north on Alabama Highway 75. Langley was following Gary Lowe, a plaintiffs' witness at trial. At the trial, Lowe testified that he saw the coal truck in his rearview mirror and that it followed him for several miles. After cresting a hill, Lowe approached the intersection of Alabama Highway 75 and DeKalb County Highway 72, approximately 300 yards below the crest of the hill. He switched on his turn indicator and began slowing to negotiate a turn onto the county highway. Lowe testified that as the coal truck topped the crest of the hill behind him, it increased speed.

Lowe testified that Langley put on his breaks to avoid striking him and crossed lanes; Marie Hammond, traveling in the opposite direction, collided with the truck. She and her husband brought suit against Langley and Estis Trucking Company, Inc., claiming damages of $500,000.00. The case was tried and a jury verdict was returned in favor of both plaintiffs and against both defendants for $200,000.00.

Defendants contend that the trial judge committed numerous errors. We pretermit discussion of all alleged errors except the following: Did the trial court err in denying defendants' motion for new trial based upon alleged improper comments during the course of trial and based upon alleged improper closing argument by plaintiffs' counsel. We hold that the trial court did so err and we reverse and remand for a new trial.

During the course of trial, following redirect examination of Mrs. Hammond, the following discussion occurred, viz :

MR. KELLETT: That's all.

MR. WATSON: Your Honor, we are going to have a few witnesses here on the before and after condition of this lady, and I have discussed it with Mrs. Hammond, and with the witnesses, and I would like to ask that she be excused for this testimony, if I may, regarding her condition. I think the testimony would be more truthful if she were excused, and I think it might save her some embarrassment.

MR. LIVINGSTON: We would like to object to those remarks by counsel, and move that this jury be instructed to disregard the remarks of counsel, that they are designed solely for the purpose of prejudicing the defendant, and solely for the purpose of injecting testimony into the record, and I think it is so prejudicial that I believe we will move for a mistrial at this point. I don't believe statements like that have anything to do with the issues in this case.

MR. WATSON: I don't know how else I can say it.

MR. LIVINGSTON: Well, it ought not to be said, period. It hasn't got anything to do with the trial of this case. We didn't bring this lawsuit, Mrs. Hammond is the one who brought the lawsuit.

MR. WATSON: Well, if the court please, we believe the testimony so far has been justified in her bringing the suit, and I don't think there has been anything said here to indicate that she shouldn't have brought it.

MR. LIVINGSTON: I would like very much for the jury to be excluded while these speeches are being made, and while he is injecting all of this into the record, and I would like to renew my motion.

COURT: Those remarks were directed to me. I know you heard it, but don't consider it in your deliberations at all. Did you object to her being ....

MR. LIVINGSTON: No, sir. She doesn't have to stay as far as we are concerned. It's her case.

COURT: You objected to the statement he made?

LIVINGSTON: I objected to the statement, and that is the basis for our motion for a mistrial, and we would like to have a ruling on that.

COURT: All right. Now, ladies and gentlemen, the statements that the counsel made, they were made to me, and they are not part of the evidence that you will consider in making up your minds in arriving at a decision. So, you don't consider those statements that you heard, if you heard them, and overrule the motion for a mistrial. Mrs. Hammond, will you come and go with the bailiff.

These comments on the evidence made by plaintiffs' attorney were prejudicial to defendants, were statements not in evidence, and were, therefore, improper. But, as can be seen from a reading of the transcript, the trial court made a curative instruction to the jurors, instructing them to ignore any comments made by the attorneys. Since the curative instruction was given, we cannot say that the trial court erred in denying defendants' motion for new trial based solely upon the improper comments made by plaintiffs' attorney.

After both sides had rested their cases, plaintiffs' attorney made the following statements in closing argument to the jury, viz :

(At a point when Mr. Watson was arguing the case to the Jury on behalf of the Plaintiffs)

MR. WATSON: They are talking about truth, and, it would have been a simple matter to get the truth about that distance. It is their defense, it is not our case, and Estis Trucking Company and the driver, Frankie Wayne Langley, hired Mr. or had him hired, Mr. Taylor from Birmingham, spent the money from that. They hired Mr. Livingston from Scottsboro and spent the money for that.

MR. LIVINGSTON: If it please, Your Honor, I want to object to that, because that is an improper line of argument, and ask that the jurors be instructed to disregard it.

MR. WATSON: I'll withdraw that.

(At another point while Mr. Watson was arguing to the Jury)

MR. WATSON: They took the deposition of the doctors in Birmingham, and they did what they would have you believe is proper in building this defense about the distance, yet they come up here and bring this little picture that is taken way up the road from where the accident happened. I really believe that the Estis Trucking Company and the defense in this case could have afforded a ....

MR. LIVINGSTON: We move for a mistrial.

MR. TAYLOR: We move for a mistrial.

MR. LIVINGSTON: The jury recognizes what he has injected into the case.

MR. TAYLOR: I move for a mistrial, Your Honor. That is totally wrong argument, improper argument, and just strictly prejudicial and intended to prejudice the minds of the jury. It hasn't got anything to do with the facts in the case, and I move for a mistrial for that.

MR. WATSON: Well, I'll withdraw that, then, if there's something wrong with that, and I've been doing it for twenty years, talking about pictures, but if there is something wrong, me discussing the fact that they would have gotten a better picture than that, I'll withdraw it.

MR. LIVINGSTON: We would like to renew our motion for a mistrial, based on the prejudicial statements made to the jury in the argument.

COURT: You will withdraw it?

COURT: Now, I have a motion for a mistrial. The motion is overruled.

COURT: Wait just a minute. Let me speak to the jury just a moment. I don't know what all has been said by witnesses, or by lawyers. I try to forget, because it is improper for me to comment on the evidence. Now, you will make up your minds, of course, from the evidence you heard. Now, if there has been exchanges between the lawyers to one another, that is not in itself a part of the evidence that you are to consider in arriving at a verdict. Now, after a couple of days of trial of course, nerves get frayed, and so forth, and it is understandable. I understand it probably more than you, because this is the first time some of you have been here, but I understand that it is not unusual, but you don't consider it, and, I know several of you, and I know that you won't consider it if I tell you not to. Overrule the motion for a mistrial, go ahead with your argument.

(At another point when Mr. Watson was arguing to the Jury)

MR. WATSON: Mr. Taylor stated to you that he is from Birmingham, but he's shocked about this $500,000.00. Ladies and gentlemen, he's not shocked. He deals in these figures everyday. He tries lawsuits all over the State of Alabama.

MR. TAYLOR: Your Honor, I again move for a mistrial. That has no place whatsoever in this lawsuit, and it is highly prejudicial.

MR. LIVINGSTON: I think that's grounds for a mistrial.

MR. TAYLOR: I am moving for a mistrial right now. I really am, because that is totally false.

MR. WATSON: Judge, I'll withdraw it, and I'll start it another way. I would like to get through with it, if it is all right.

COURT: Overrule your motion for a mistrial.

MR. WATSON: Ladies and gentlemen, Mr. Taylor is not shocked about $500,000.00, regardless of where he is from, and regardless of where he tries lawsuits. He is not shocked.

MR. LIVINGSTON: I would like to make the same motion, because that hasn't got a thing in the world to do with whether Mrs. Hammond-what her injuries are dealing with at all, not the first thing, Your Honor, and we would like to make the same motion for the benefit of the record.

COURT: Overruled.

(At another point when Mr. Watson was arguing to the Jury)

MR. WATSON: Ladies and gentlemen of the jury, I have no reluctance in asking you to grant this lady $250,000.00 for the injury she has suffered. I have absolutely no reluctance, none whatsoever. If somebody told you that you were going to go through that wreck, and go through what we have shown here that she has gone through since then ....

MR. LIVINGSTON: We want to make another objection. He is asking the jury to place themselves in the place of this lady here. That is precisely what he said, Your Honor, and...