Harrison v. Baker

• Decision Date: 18 March 1954
• Docket Number: 4 Div. 752
• Citation: Harrison v. Baker, 260 Ala. 488, 71 So.2d 284 (Ala. 1954)
• Parties: HARRISON v. BAKER.
• Court: Alabama Supreme Court

Page 284

71 So.2d 284

260 Ala. 488

HARRISON v.BAKER.

4 Div. 752.

Supreme Court of Alabama.

March 18, 1954.

Forest L. Adams, Abbeville, Rushton, Stakely & Johnston, Montgomery, for appellant.

G. D. Halstead, Headland, Crews Johnston, Clayton, for appellee.

PER CURIAM.

The question in this case is whether there was reversible error in the action of the court in granting a new trial on motion of defendant.The plaintiff recovered a judgment for personal injuries and for damage to his car on a count in the complaint charging negligence by defendant in causing the collision.

The trial court in granting the motion for a new trial based it on what the judge considered an error which he made in overruling objection to the evidence of the witness Mrs. Maude Herring, given on cross-examination.She was a witness for defendant.She testified on direct examination that she lived two hundred or three hundred yards from where the collision occurred: that she heard the impact and went immediately to the scene and was there after the accident 'a minute, I would say, not over two'.That when she got there both parties were in their automobiles.She stated what she found as to the position of each car; that she assisted in getting plaintiff out of his car, and that she attempted to get defendant out of his car but could not do so as he was unconscious.Both cars were in the road on opposite sides.On cross examination she testified that she ran up there; that Mr. Harrison (plaintiff) made a statement to her, when the following occurred:

'Q.What did he say?A.He said, * * *

'Mr. Johnston: We object.

'Mr. Porter: Part of the res gestae, your honor.

'The court: Overrule the objection.

'Q.What did he say?A.He said, 'For God's sake, lady, get that man's name and tag number.He was sweeping from one side of the road so, until I couldn't miss him.'

'Mr. Porter: That is all.

'Mr. Johnston: We make a motion to exclude the answer to the last question.

'The court: Overrule the motion.

'Mr. Johnston: We except.

'(The witness was excused and withdrew from the court room.)

'Mr. Johnston: We would like to reserve an exception to both the ruling of the court on the objection and on the motion to exclude.

'The court: All right.'

(Mr. Porter represented plaintiff.Mr. Johnston represented defendant.)

After the verdict and judgment for plaintiff, defendant made a motion for a new trial on the usual grounds and also on the ground of error committed by the court in allowing the witness, over the objection of defendant, to testify that plaintiff, shortly after the accident, said: 'For God's sake, lady, get that man's name and tag number.He was sweeping from one side of the road so, until I couldn't miss him.'Another ground was in overruling defendant's motion to exclude the above recited testimony.

The judgment of the court recited the fact that defendant'offered in evidence an ex parte affidavit pertaining to a statement made by a juror, after original trial, pertaining to the testimony that, as he understood it, was considered by the jury in its deliberations in reaching a verdict for the plaintiff', and that objection was made to the affidavit.The court, at the conclusion of the hearing, and having expressed the opinion that he had committed error in overruling the objection to the evidence of Mrs. Herring, mentioned above, announced its opinion that the ex parte affidavit would not violate the rule that transactions in the jury room cannot be given in evidence by a juror to break down a jury verdict, but 'that the admission of this ex parte affidavit would not violate that rule and would be helpful to the court in determining whether or not the error committed by the court in admitting the statement of the plaintiff, as hereinabove referred to was prejudicial to the defendant.The court has considered this ex parte affidavit in reaching its conclusion.'The essential features of the affidavit are as follows:

'That after the trial of said cause and in which the jury returned a verdict for the plaintiff of $5000. affiant was in the court house of said county in Abbeville, and at which time there were present O. B. Harrison, the plaintiff in said cause, Charles Porter, one of plaintiff's attorneys, one of the jurors who tried said cause, and affiant.That at said time and place Charles Porter asked the juror, whose name is unknown to affiant, in substance, 'What testimony they considered most in arriving at their verdict, or what testimony they accorded the greatest weight, or what testimony impressed them most.'Whereupon the juror named two or three bits of testimony, among which was the testimony of the witness Mrs. Maude Herring, and where she testified on cross examination to the declaration or statement that Mr. Harrison made to her after the accident.'

The judgment then recites that plaintiff insists that defendant did not interpose timely objection and exception to the questions and answers which brought out the questionable statement.The judgment then refers to the status of what occurred (as it has been set out above) and then stated: 'It was the purpose and intent of the court to give counsel for defendant, when the court said 'all right,' the full and complete benefit of all objections, exceptions and motions to any ruling the court might have made in connection with the admission in evidence of the statement made by plaintiff.The court cannot, without violating its conscience, do otherwise at this time and will not do otherwise.'It was then ordered that the verdict and judgment be set aside and defendant be granted a new trial, to which plaintiff excepted.

The appeal is authorized by section 764,

The appeal is authorized by section 764

The first point made by appellant is that the exception was not available because it was not taken to the ruling of the court before a responsive answer was made to the question.It is true we have said that 'timely objection to a question is necessary and the point is not preserved if the objector speculates on the answer and waits until after the answer to reserve an exception to the ruling.'Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594, 597, and cases there cited; also Atlanta and St. Andrews Bay R. Co. v. Fowler, 192 Ala. 373, 68 So. 283.

It is said that 'the primary and essential function of an exception is to direct the mind of the trial judge to a single and precise point in which it is supposed that he has erred in law, so that he may reconsider it and change his ruling if convinced of error, and that injustice and mistrials due to inadvertent errors may thus beobviated.'United States v. United States Fidelity and Guaranty Co., 236 U.S. 512, 35 S.Ct. 298, 303, 59 L.Ed. 696;3 Am.Jur. 47, section 271.A history of the statement of our cases, supra, shows that the court was solicitous that a party should not speculate on what the answer should be before objecting, and that the trial judge should know that he would be reviewed for overruling the objection, so that he could change his ruling if he wished to do so.The time when the exception is taken is said to be for the benefit of the trial judge.The time when the objection is made and ruling had is said to prevent speculation.So that if the circumstances of the trial show a ruling on a timely objection and that the court was duly apprised of a purpose to review that ruling on appeal, it should be sufficient in view of the purpose of an exception.When the court gives assent to the exception it is shown that he has timely notice of a purpose to review and should then change his ruling if he wishes to do so.

The record shows a timely objection to the question calling for the evidence, and that it was overruled.The question was repeated apparently for the benefit of the witness.It was not necessary to repeat the objection and get another ruling.True then was the time to except, the ruling having been made.But the court indicated his willingness to approve the exception which came later.The exception therefore served its purpose, and the time when taken should not be used to prejudice the defendant.However, there is also a rule, which is soundly stated, that the trial 'courtmay in its discretion consider an error (on a motion for a new trial) even though proper objection or exception was not taken.'66 C.J.S., New Trial, § 13, note 81, p. 105.The principle is thus stated in Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 697, 127 A.L.R. 711: 'Exceptions, while essential to preservation for appellate review of matters outside the record proper, are immaterial in considering the propriety of the trial court's action in granting a new trial, because 'the trial court may grant a new trial on account of any erroneous ruling made by it, whether excepted to or not.'' The common law power of a court to grant a new trial exists when the court has made an erroneous ruling which is prejudicial to the losing party although no exception is reserved.But it would not be reversible error to overrule the motion when an exception was not duly reserved.The court may, without error, grant a new trial based upon argument of opposing counsel when no objection was made to the argument and no ruling had on it, when it is grossly improper and highly prejudicial.Louisville and Nashville R. Co. v. Sullivan Timber Co., 126 Ala. 95, 104, 27 So. 760;Birmingham Ry. Light &...