Geter v. Central Coal Co.

• Decision Date: 16 January 1907
• Citation: 43 So. 367,149 Ala. 578
• Parties: GETER v. CENTRAL COAL CO. [*]
• Court: Alabama Supreme Court

43 So. 367

149 Ala. 578

GETER v. CENTRAL COAL CO. ^[*]

Supreme Court of Alabama

January 16, 1907

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Kitt Geter against the Central Coal Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Many assignments of error are predicated upon the action of the court upon the trial of the cause, but are not considered in the opinion, for the reason clearly stated therein. Plaintiff filed an application for a new trial, assigning the following grounds: "(1) Because the plaintiff was taken by surprise on the trial in this: That the defendant, through one of its officers, claimed that on a certain day, when in company with another one of defendant's officers, he was on a visit to this plaintiff, plaintiff admitted to him that he was at fault, and that he himself contributed to his alleged injury, when in fact no such admissions were made. (2) Same grounds as No. 1. (3) On the grounds of newly discovered evidence, in that he had discovered since the trial the names of two or more parties who were present during the whole of the conversation between plaintiff and defendant's officers, Roden and Pearson, at their said visit, and who will and do testify that Geter made no use of the language they claimed to use, and that he used no words that could be construed to mean that he was in any manner to blame for his injuries. (4) Because the charge given by the trial judge was partial, and calculated to bias the minds of the jury in favor of the defendant. (5) Because the oral and emphatic charge of the judge was unintentionally prejudicial to plaintiff's interest, and was calculated to bias the jury. (6) Because the trial judge constantly and repeatedly reiterated the same parts of his charge, saying the same thing over and over when it favored the defendant, and unnecessarily emphasizing the statement that the jury should find for the defendant, and partly in support of this ground plaintiff refers to the charge as taken down by the court's official stenographer, Mr. Evans." The seventh, eighth, ninth, tenth, eleventh, and twelfth grounds were an enlargement and elaboration of ground 6, all referring to the unintentional action of the judge, creating a bias in the minds of the jury favorable to the defendant. The facts are sufficiently stated in the opinion, and as to each ground of the motion the evidence was in controversy.

Francis D. Nabors and Arthur Brown, for appellant.

Walker Percy, for appellee.

TYSON C.J.

This case was tried on the 30th day of September, 1902. On the 30th day of October following a motion for a new trial was entered. This motion was disposed of on the 30th day of June 1905, by judgment overruling it. The bill of exceptions in the record was signed on the 18th day of October of the same year, but within the time allowed for its signing by an order of the court made when the motion was denied and other orders of the presiding judge made in vacation.

Many assignments of error are predicated upon exceptions reserved upon the trial not made grounds for the motion for new trial. It is clear that these cannot be considered. It is only the assignment of error based upon the ruling upon the motion that is presented for review, for the reason that the bill of exceptions can only be regarded as preserving the exception taken to that ruling. 5 Mayfield's Dig. p 720, § 15.

The motion contained a number of grounds. The main cause of complaint seems to be aimed at the conduct of the presiding judge, which, it is asserted, was prejudicial to plaintiff's cause in the minds of the jury that tried it. His conduct, upon which is relied as sustaining this assertion, was in giving undue emphasis to certain words in his oral charge to the jury, cautioning them not to permit their sympathies to influence their verdict, etc., and in acts of familiarity with one Pearson who was a stockholder in and an officer of defendant corporation, and a witness for it on the trial of the case.

It does not appear that plaintiff reserved an exception to the charge of the court, and unless this was done he must be regarded as having waived all objections he may have had to it. He will not be allowed to speculate upon its...