Kilcrease v. Harris

• Decision Date: 23 March 1972
• Docket Number: 4 Div. 427
• Citation: 259 So.2d 797,288 Ala. 245
• Parties: Willie Clay KILCREASE et al. v. James Howard HARRIS.
• Court: Alabama Supreme Court

Page 797

259 So.2d 797

288 Ala. 245

Willie Clay KILCREASE et al. v. James Howard HARRIS.

4 Div. 427.

Supreme Court of Alabama.

March 23, 1972.

Albrittons & Rankin, Andalusia, for appellants.

Tipler, Fuller & Barnes, Andalusia, for appellee.

McCALL, Justice.

The defendants, Willie Kilcrease and his principal, Oil Well Company, Inc., a corporation, appeal from a circuit court judgment against them in favor of the plaintiff, James Howard Harris. The litigation arose out of an accident between two motor vehicles on U.S. Highway 331 near McPhail Farm Road, on the north side of Florala in Covington County, Alabama. Following the jury verdict and judgment, the defendants filed a motion for a new trial which was overruled.

The first question presented to us is whether the trial court erred in overruling the defendants' motion for a mistrial, made after the appellee's attorney remarked in his opening statement to the jury:

'* * * The evidence will show you that he (plaintiff) has already had between eleven and twelve thousand dollars of medical expense, hospital, doctors and nurses, not counting the mother as a nurse and the father and their expenses. The evidence will show that the father has mortgaged his farm . . .'

After the court sustained the appellants' objection to the above, appellants' counsel then stated: 'That is highly prejudicial.' The court then again sustained the objection and instructed counsel for the appellee not to refer to the matter. Thereupon the appellants moved for a mistrial. The court denied the motion, and instructed the jury to disregard the statement.

In deciding whether a statement of the sort at hand is so grossly improper or so highly prejudicial as to warrant our reversing the action of the trial court for denying appellants' motion for a mistrial, we have found no case to fit the precise situation. It has been said that each case of this character must be decided upon its own merits and that there is no horizontal rule by which these qualities can be ascertained in all cases. Much depends on the issues, the parties, and the general atmostphere of the particular case. The final test is: 'Can the prejudicial tendency or effect of the improper statement be counteracted by an appropriate instruction from the trial judge, or is it probably beyond the reach of such remedial action?' Birmingham Ry., Light & Power Co. v. Gonzalez, 183 Ala. 273, 287, 61 So. 80, 85. See also Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 461, 113 So 403; Southern Ry. Co. v. Jarvis, 266 Ala. 440, 446, 97 So.2d 549; Daniel Construction Co. v. Pierce, 270 Ala. 522, 530, 120 So.2d 381; Argo v. State, 282 Ala. 509, 512, 213 So.2d 244. Since the trial judge was present, saw and heard what took place, assessed the tone of the statement, and observed the reaction of the jury and that of others about him to the remark of counsel, as well as the follow-up effect of his own rulings and instruction to the jury, much discretion is to be accorded the trial court in such a situation. Phillips v. Ashworth, 220 Ala. 237, 241, 124 So. 519; Pacific Mutual Life Ins. Co. of California v. Green, 232 Ala. 50, 166 So. 696; Central of Georgia Ry. Co. v. Phillips, 286 Ala. 365, 240 So.2d 118. Unless the trial court has abused its discretion, we will not reverse the case on the stated ground when presented to us. Gilmer v. Salter, 285 Ala. 671, 235 So.2d 813. In order to cure any harm caused by the statement, the court promptly and affirmatively sustained the appellants' objection to the remark, instructed the jury to disregard the statement, and directed counsel not to refer to it. In this action the court acted correctly. After considering all that occurred, it does not clearly appear to us that the trial court abused its discretion in refusing to grant the appellants' motion for a mistrial, Boundrow v. H & R Construction Co., 284 Ala. 60, 64, 222 So.2d 154, or in refusing to grant them a new trial. While the same objection, in substance, was available on the motion for a new trial, the trial judge, who witnessed the proceedings, was of the opinion that there was no sufficient reason for granting the motion on that ground, and we are unwilling to say that the court committed reversible error in so ruling. See Thames v. Louisville & N.R.R. Co., 208 Ala. 255, 94 So. 487.

Later on in the trial, during the course of the appellee's cross-examination of the appellant, Kilcrease, the witness was asked if he had not had several previous accidents. The appellants' objection was sustained and the question was withdrawn. The appellants moved that the jury be instructed to disregard the question. The appellants also moved for a mistrial. The court instructed the jury to disregard the question, but denied the motion for a mistrial. The question called for immaterial and irrelevant testimony under the complaint as framed. Dean v. Johnston, 281 Ala. 602, 206 So.2d 610; Alaga Coach Line v. McCarroll, 227 Ala. 686, 151 So. 834. The appellants contend that the question concerning previous accidents was highly prejudicial to the appellants and such could not be eradicated from the minds of the jury, because the court was not forceful in its attempt to cure the misconduct and only instructed the jury to disregard the question. The court did all that was asked or it. We cannot agree that the action taken by the court did not serve to counteract any harmful effect created in asking the question. The court clearly instructed the jury to disregard the question. We think that the eradication was effectively carried out by the court. The witness never answered the question, the question was withdrawn, and its substance did not, in our opinion, come within the class of matter, declared ineradicable by withdrawal or instruction by the court.

The appellants further contend that the subject matter of the question: 'You have had several previous accidents, haven't you?', when coupled with the appellee's previous improper and prejudicial remark to the jury was sufficient collectively to create such bias, prejudice and passion against the appellants as to result in the verdict for the appellee. The remark in the appellee's opening statement to the jury, that the father had mortgaged his property and the question relating to previous accidents, were completely disassociated from each other, both as to the time of their utterance and essence of their subject matter, so that they would not compound, in our opinion, to form a cumulative harmful effect. Therefore, we are not persuaded that the acts, complained of, either separately or collectively required that the court grant a mistrial, or the motion for new trial on the ground that a mistrial ought to have been granted.

The next question that the defendants argue is that the lower court erred in refusing the defendants' request for the affirmative charge and the affirmative charge with hypothesis under the negligence count. Appellants contend that the plaintiff, Harris, '* * * was guilty of such contributory negligence as reflected by the testimony, as to preclude his recovery. * * *' We disagree. In Reaves v. Maybank, 193 Ala. 614, 69 So. 137, it was said that it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court. Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594. Where the affirmative charge is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party requesting the charge, the charge is properly refused. Central of Ga. R.R. Co. v. Rush, 286 Ala. 333, 239 So.2d 763; Birmingham Southern R.R. Co. v. Ball, 271 Ala. 563, 126 So.2d 206. When the entire record is reviewed in a light most favorable to the appellee, the evidence bearing on the issue of the appellee's contributory negligence is in material conflict. There was evidence from which the jury could find that the appellee was free from negligence which proximately contributed to his injury.

The evidence most favorable to the plaintiff on this subject was that on the rainy afternoon of March 17, 1970, the appellee, traveling west, stopped at the stop sign on McPhail Farm Road before entering its intersection with U.S. Highway 331, a though highway, that he looked and saw no vehicles approaching to his left, that after he entered the intersection and had proceeded northward 75 to 100 feet on the through highway, his truck, which was in second gear was struck unexpectedly from behind on the left rear side by the defendant Oil Well Company's heavily loaded tractor trailer truck which was overtaking him at 35 miles per hour in a more restricted speed zone, having approached from the south over the crest of a hill or incline in the highway about 150 feet from the intersection. The evidence was also to the effect that the driver of the oil truck which was traveling in the city limits of Florala, was familiar with the intersection he was coming to and with traffic in the area, that there was a standard road sign indicating the intersection ahead, that it was raining and the highway was slick, and that he looked in his rear view mirror just before the accident. He testified further that when he saw the pickup truck he didn't do anything. He did not attempt to brake his truck or turn it from its line of travel, although the three lanes for travel to his left in the four lane highway were apparently clear of vehicles. The foregoing is a resume of the evidence most favorable to the plaintiff on the issue of the giving or refusing of the defendants' requested affirmative charges. The defendants' evidence was in conflict with this. Conflicts though are what make the question of the appellee's contributory negligence and proximate cause one...