Louisville & N. R. Co. v. Phillips

Decision Date06 March 1975
Citation310 So.2d 194,293 Ala. 713
CourtAlabama Supreme Court

Henry E. Simpson, Birmingham, for appellant.

Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.

EMBRY, Justice. 1

This is an appeal by defendant Railroad Company from an order of the trial court granting a motion for new trial. We affirm.

The action was by plaintiff employee of defendant Railroad under the provisions of Tit. 45, U.S.C.A., 1, 9 (Federal Safety Appliance Act) and § 51 (Federal Employers' Liability Act); claiming damages for injuries to his right elbow and arm as a result of two incidents occurring on separate occasions.

At the close of the evidence the issues were submitted to the jury and a verdict returned by it in favor of the defendant Railroad. Judgment was entered accordingly.

The facts surrounding the incidents producing the injuries are not necessary to a determination of the issues raised in this case. After judgment, plaintiff employee filed motion for new trial on the ground, among others, that a question to plaintiff by attorney for defendant during cross-examination of plaintiff was so prejudicial to plaintiff and his rights that he did not obtain a fair trial of the action.

The ground as stated in motion of plaintiff for new trial is as follows:

'8. For that on Motion in Limine, the Court instructed Counsel for the defendant to write out any question and present it to the Court or to present any question before asking it in the presence of the jury concerning an assault and battery charge or charges of which the plaintiff was charged and/or convicted subsequent to the injuries alleged in plaintiff's complaint and that Counsel for the defendant did not comply with said instructions of the Court but asked the plaintiff in the presence of the jury in substance, the following question:

'Was that the fracas with the young lady',

such question being so prejudicial to the plaintiff and to the rights of the plaintiff and so contrary to the instructions of the Court to defendant's Counsel that plaintiff could not obtain a fair trial.'

The question presented for review is whether the trial court was justified in its conclusion that a new trial should be granted because of the infection of prejudice into the proceedings to the extent that plaintiff could not and, therefore, did not obtain a fair trial of his case. Defendant Railroad on the other hand urges in substance that prejudice, if any, was not sufficient to have affected the result or, on the other hand, such was eradicable and cured by action of the trial court during trial.

Extensive and exhaustive briefs for both of the parties are directed to the issue presented for review. There is a plethora of citations seeming to support the contentions of each of the parties.

We here quote the penultimate series of questions and answers that apparently moved the trial court to grant the motion for a new trial. These climaxed other occurrences which the trial judge apparently deemed prejudicial to plaintiff.

'Q (BY MR. SIMPSON:) Well, you have lifted furniture since this accident, haven't you?

'A I have, yes, sir.

'Q And moved it up into second stories of apartment buildings, haven't you?

'A No, sir.

'Q Where?

'A On first stories.

'Q On first stories and you moved it around from apartment to apartment?

'A On ground floors, yes, sir.

'Q You carried it?

'A Sir?

'Q You carried it, didn't you?

'A Oh, I carried some lamps and some end tables.

'Q All right. Did she carry the sofa or did you?

'A Who?

'Q The young lady that you had the fracas with?

'MR. BURGE: There, Judge, there. You can--

'MR. SIMPSON: He asked me the question.

'MR. BURGE: There you go, Judge, and we move for a mistrial if it please the court.

'THE COURT: Gentlemen, this case or any other are to be tried in accordance to the testimony that bears on the case that we are trying now. I want to say that to both sides that I will not stand for as being fair inquiries those that are on the side and have to do primarily with other matters and don't throw any direct light, on the questions we are trying. I won't stand for that. It is not proper and it is not legal and that's all counsel on either side needs to know in my humble opinion. So go ahead with your question.'

Other matters appear in the record that are within the ambit of ground eight of plaintiff's motion for new trial. The first of these surfaced on the occasion of the hearing of plaintiff's motion In limine. That motion sought to 'head off,' as it were, anticipated injection of irrelevant prejudicial evidence into the trial. Specifically it was to preclude introduction by defendant of evidence concerning plaintiff gleaned from records of the Nashville, Tennessee, Police Department that: (a) plaintiff had received a traffic ticket, (b) had been arrested and convicted on two counts of assault and battery and one of disorderly conduct, (c) had suffered a forfeiture of a $50 bond for failing to appear and answer drunk and disorderly conduct charges.

These facts had been developed by defendant on oral deposition of a Sergeant of Police of Nashville. To that deposition there was attached as an exhibit, the entire police record of plaintiff. The assault and battery counts as well as the charge of disorderly conduct arose from an incident with a lady ('Q The young lady that you had the fracas with?') after he suffered the alleged injuries made the basis of his asserted right to recover damages from his employer.

On the hearing of the motion In limine defendant advanced the theory that assault and battery involved physical exertion by plaintiff thus evidencing ability to use his arm at a time when he was claiming to be disabled. In sum, the argument of plaintiff to the contrary was that such light as might gleam on the issue by admitting the evidence would be far outweighed by prejudice to him from revelation that the assault and battery consisted of shoving a woman. It should be noted that the trial court ruled at this point that the police record exhibit would not be admitted and further stated:

'THE COURT: I would say this: The records you have may not be explicitly (sic) enough as to the activity to make it admissible. A man who says he is disabled in the right arm. Whether he is in the right or whether he is in the wrong in a certain fracas would be not the question we are trying here but whether or not he had an activity in that arm where he could use that arm and did use it. That's the question that we would be involved in.'


'THE COURT: * * * I would say this, if counsel for the defendant in the course of the trial finds that he wants to question the plaintiff about some of that or some other witness, I would believe maybe that we better have a further short conference to see just exactly the area that is to be covered. I believe it would be an area covered. All right. The question of whether or not he pled guilty to an assault and battery, I don't believe that's pertinent. It may never been. But the question of whether or not he used that arm in a fracas, whether he was in the right or whether he was in the wrong, we are not trying that question. We are trying the question of his activity and the ability to use that arm at that time or did he use it. I think he could ask that question.'

There followed a long colloquy between counsel for both parties and the court. It concerned what areas of evidence that might be explored regarding the ability of plaintiff to use his right arm, including the assertion by defendant that long continued shooting of craps could cause bursitis in the elbow. It was not disputed that, except for two very brief intervals, plaintiff had worked regularly for defendant since the occurrence of the latter of the two accidents made the basis of his claim against defendant. During the course of those proceedings in chambers the trial court, we think, made it abundantly clear to delineate those subjects of inquiry which he thought should be subject to In-chambers conference before counsel for defendant proceeded to develop them. Persistently during the trial, counsel eased into the forbidden subjects without seeking guidance of the court by in-chambers conference.

Thus we are presented with the necessity of determining whether the trial court properly exercised his discretion to grant a new trial to correct the jury verdict which he felt to have resulted from prejudicial, improper, extraneous influences finding their way into the jury box.

The principle to be followed in making the determination of the correctness of the trial court's action in ordering a new trial is well stated in Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389:

'It is the generally accepted rule that it will constitute grounds 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. * * *' 221 Ala. at 228, 128 So. at 392.

More apt, perhaps, to the facts of the case before us, in light of the proceedings in chambers on the motion In limine, is the quote from Metropolitan Life Insurance Co. v. Carter, 212 Ala. 212, 102 So. 130, in Ritchey v. State, 293 Ala. 265, 302 So.2d 83:


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