Harvey Ragland Co. v. Newton

• Decision Date: 28 August 1958
• Docket Number: 6 Div. 211
• Citation: 105 So.2d 110,268 Ala. 192
• Parties: HARVEY RAGLAND COMPANY, Inc., et al. v. Wiliam E. NEWTON.
• Court: Alabama Supreme Court

Page 110

105 So.2d 110

268 Ala. 192

HARVEY RAGLAND COMPANY, Inc., et al. v. Wiliam E. NEWTON.

6 Div. 211.

Supreme Court of Alabama.

Aug. 28, 1958.

Rehearing Denied Sept. 25, 1958.

London, Yancey, Clark & Allen, Jas. E. Clark and Bibb Allen, Birmingham, for appellants.

Higgins, Windham, Perdue & Johnson, Birmingham, for appellee.

MERRILL, Justice.

This is an appeal by defendants from a judgment of the trial court granting plaintiff's motion for a new trial. Plaintiff sued for injuries received while he was a pedestrian crossing U. S. Highway 31 in Warrior, and he was hit by the truck of defendant Harvey Ragland Co. while being driven by defendant Laminack. The complaint was in two counts, but the wanton count was withdrawn and the cause was submitted to the jury on the count charging simple negligence. The jury returned a verdict in favor of defendants, and the trial court granted plaintiff's motion for a new trial.

The motion for new trial contained 72 grounds. In the ruling on the motion the trial court stated in part:

'In view of the decision to be hereinafter noted the court feels that it is proper that certain grounds of this motion be disposed of as being without merit or at least if error was committed it was insignificant and without any possible injurious result to the plaintiff. First of all, grounds 1 to 13 inclusive, presenting the question of the weight of the evidence are clearly without merit. The evidence was substantial, if believed, which completely sustained the verdict that was rendered. By the same token there was also substantial evidence, which if believed by the jury, would have permitted a verdict for the plaintiff. The court is also of the opinion that the matters presented in the motion and as set out in grounds 12, 13, 21 to 40 inclusive; 45, 47, 48-53 inclusive are without merit. Likewise, all of the grounds which present the rulings of the court on requested charges as set out in grounds 56 to 72 do not present error, if any, on which this motion should be granted.

'After careful consideration of the matters presented in the other grounds not hereinabove enumerated, and without a discussion of any of them, the court has reached the conclusion that a new trial should be awarded the plaintiff. Accordingly, the judgment and verdict is hereby set aside and a new trial awarded, the defendants separately and severally except to the rulings on this motion.'

We agree with the trial court that the grounds specifically mentioned are without merit, and we discuss only those grounds which the trial court considered as meritorious in granting the motion for a new trial. If there was any proper ground in the motion, the court's ruling on the motion was correct. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224.

But here the court expressly held that the evidence was substantial and 'completely sustained the verdict that was rendered.' When so, the following from Alabama Great Southern R. Co. v. Gambrell, 262 Ala. 290, 78 So.2d 619, 621, is applicable:

'The plain language of the court, however, shows that an adequate verdict has been returned in the opinion of the court. If this be true, should we disregard the rights of the parties to the cause? The fact that the verdict is not unjust is a material if not a decisive factor in determining whether the new trial should be granted. Alabama Power Co. v. Bowers, [252 Ala. 49, 39 So.2d 402] supra; American Railway Express Co. v. Reid, 216 Ala. 479, 113 So. 507; Mobile Light & R. Co. v. Gallasch, 210 Ala. 219, 97 So. 733.'

Grounds 14 and 15 are concerned with rulings of the court during the crossexamination of Highway Patrolman Boutwell, who on direct had testified, without objection, to some statements the driver Laminack had made to him.

'Q. I will ask you if he made any statement with reference to his speed before and at the time of the accident?

'Mr. Perdue: We object to that, hearsay.

'The Court: Any part of the conversation gone into, he would be entitled to develop the other part. You didn't object to this other part. I will overrule the objection.

'A. Yes, sir, he stated at the time there shortly prior to the accident he was driving 15 to 20 miles an hour.

'Q. All right, sir, did he give you an estimate of his speed at the moment of the accident? If so, what is it?

'Mr. Perdue: Same objection.

'The Court: Same ruling.

'A. Ten miles an hour.'

Assuming, without deciding, that the court erred in these rulings, it was rendered harmless by later evidence. Plaintiff introduced Laminack's answers to interrogatories which stated the speed exactly as testified to by Patrolman Boutwell. Laminack testified to the same speed at the trial. Three other witnesses, two for plaintiff and one for defendant, testified without objection as to the speed Laminack was driving at the same time and place, and their estimates were within five miles per hour of Laminack's, and all estimates were far below the lawful speed limit in effect at the place of the accident. Prejudicial error may not be predicated upon the admission of evidence which has been admitted without objection or motion to exclude at some other stage of the trial. Foster & Creighton Co. v. St. Paul Mercury Ind. Co., 264 Ala. 581, 88 So.2d 825; Mobile City Lines v. Hardy, 264 Ala. 247, 86 So.2d 393; Bailey v. Tennessee Coal, Iron & R. Co., 261 Ala. 526, 75 So.2d 117; Lindsay v. Barton, 260 Ala. 419, 70 So.2d 633.

Grounds 16 through 20 inclusive all relate to the same matter which is adequately stated in ground 19:

'19. For that the attorneys for the defendants prejudiced the rights of this plaintiff by continually injecting into the case the highway patrol report in regard to this accident, after the court had ruled that such report was not admissible.'

Defendant offered the highway patrol report into evidence three times, and at another time made the following remark: 'We object unless he (opposing counsel) will let us introduce the report.' The trial court properly sustained plaintiff's objections. Pike Taxicab Co. v. Patterson, 258 Ala. 508, 63 So.2d 599. Appellee contends that it constitutes a ground for a new trial if counsel, in disregard of the court's ruling that a certain line of evidence is inadmissible, persists in attempting to get such evidence before the jury to the prejudice of the unsuccessful party. This principle was stated and applied in Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389, 393. The questions asked there were both repeated and prejudicial, and this court said that:

'* * * we think through the persistent conduct of counsel for plaintiff the incompetent proof was so presented to the jury as to leave upon their minds an ineradicable impression. It permeated the entire trial without reproof or condemnation, and that it was of a highly prejudicial character is clear, and, indeed, the gross excessiveness of the verdict rendered adds strong indication of its ineradicable nature.'

We do not think that the situation and circumstances in the Blackwell case are similar to those in the instant case. The patrolman had testified to many facts from the report, and others had testified to the same facts. There is a great difference in making three separated offers of a Highway Patrol report and the following small part of the prejudicial questions asked in the Blackwell case, where plaintiff was suing for burns received while a patient in the hospital:

'Dr. Stephens was asked whether or not he had heard of other people getting burned at defendant hospital. The objection was sustained, and the ruling immediately followed by the question, 'Have you or have you not?' Objection again sustained, and the witness was then asked whether or not he had heard of a particular person, one Coe, getting burned at what is 'now known as the Birmingham Baptist Hospital, Incorporated.''

We are unable to say that an 'ineradicable impression' had been left on the minds of the jury or that a prejudicial atmosphere against the plaintiff was developed by the offers into evidence of the report, and no reversible error appears in this connection.

Ground 41 is based on the following:

'Q. I will ask you if you know you hadn't been having trouble with the brakes on that particular truck?

'Mr. Clark: We object to that, Your Honor. There is no evidence they had ever had any trouble with the brakes and he can't put that on. The statement isn't made in good faith.

'The Court: I think if he knows with reference to the brakes--I will overrule.'

Appellee contends that the remark--'the statement isn't made in good faith'--constituted an attack upon the sincerity of counsel for appellee and cites Sinclair v. Taylor, 233 Ala. 304, 171 So. 728; Birmingham Electric Co. v. Ryder, 225 Ala. 369, 144 So. 18, and Birmingham Railway, Light & Power Co. v. Drennan, 175 Ala. 338, 57 So. 876. In the latter case, plaintiff's counsel, in closing argument, said to the jury: 'I know Hugh Morrow, and I know what I am going to tell you about him is true. I know that if he was on the jury trying this case that he would render a verdict in favor of the plaintiff in a large amount.' Hugh Morrow was the defendant's attorney; he objected and the court sustained the objection. In that case this court held that the trial court did all that it was requested to do, and no error was committed until the trial court failed to grant the motion for a new trial when the incident was cited as a ground for the motion. Then this court correctly held that the action taken by the trial court during the trial was not sufficient to eradicate the erroneous impression it may have produced on the minds of the jury.

Here, the court also ruled in favor of appellee and the first complaint was made on a motion for a new trial. It has long been the rule that where no objection is made to remarks of counsel, it is too late to urge them as reasons for a new trial at a later date, Louisville & N. R. Co. v. Sullivan Timber...