Mutual Sav. Life Ins. Co. v. Smith
Decision Date | 06 November 1998 |
Parties | MUTUAL SAVINGS LIFE INSURANCE COMPANY v. Alsie M. SMITH. |
Court | Alabama Court of Civil Appeals |
Robert W. Bradford, Jr., and Jeffrey J. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
Frank H. Hawthorne, Jr., and C. Gibson Vance of Hawthorne & Hawthorne, L.L.C., Montgomery, for appellee.
On Remand from the Supreme Court
The prior judgment of this court dismissing the appeal of Mutual Savings Life Insurance Company has been reversed, and the cause remanded. Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649 (Ala. 1998). On remand, we affirm the order of the trial court granting a new trial.
Much of the pertinent procedural history in this case is summarized in our earlier opinion:
Mutual Sav. Life Ins. Co. v. Smith, 765 So.2d 646, 647 (Ala.Civ.App.1997). Relying on Sunshine Homes, Inc. v. Newton, 443 So.2d 921 (Ala.1983), this court dismissed MSLIC's appeal as untimely; however, on certiorari review, the Alabama Supreme Court overruled Sunshine Homes, reversed this court's judgment, and remanded the case "for th[is] court to consider the appeal." 765 So.2d at 652. In compliance with the mandate of the Supreme Court, we now consider the merits of MSLIC's appeal.
The jury in this case found in favor of Smith, and awarded her $625 in compensatory damages. Smith's new-trial motion asserted four grounds: (1) that the jury's award of damages was insufficient; (2) that the verdict was against the great weight of the evidence; (3) that the trial court had erroneously excluded rebuttal evidence of MSLIC's wealth; and (4) that counsel for MSLIC had improperly insisted upon receiving "yes" or "no" answers from Smith's witnesses during cross-examination. The trial court did not specify in its order which of these grounds it had relied on in granting a new trial, although its certification entered in order to allow the defendant to seek permission to appeal, pursuant to Rule 5, Ala.R.App.P., discloses that the trial court based its decision to grant a new trial upon a perceived "inconsistency" between the jury's verdict in favor of Smith and its assessment of damages.
"It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge," and "the exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error." Curtis v. Faulkner Univ., 575 So.2d 1064, 1066 (Ala.1991). Moreover, even if it can be assumed, as the dissent suggests, that the trial court granted a new trial on an improper basis, this presumption of correctness in favor of its judgment persists. "This court has repeatedly held that the action of a trial court, in granting a new trial, is sustainable if there is any ground ... justifying the action, regardless as to whether the ruling may have been rested on an improper ground." Lawson v. General Tel. Co. of Alabama, 289 Ala. 283, 291, 267 So.2d 132, 139 (1972); accord, Wilbanks v. Hartselle Hosp., 54 Ala.App. 630, 632, 312 So.2d 29, 30 (Ala.Civ.App.1975).
The record reveals that Smith's new trial motion alleged, among other things, that she was unduly prejudiced by several statements made by MSLIC and its counsel concerning MSLIC's size, including a declaration that MSLIC was a "small company" whose employees owned 78 percent of the company. The new-trial motion further alleged that Smith had not been allowed to rebut these statements by demonstrating at trial (1) that MSLIC had earned $3 million in net profits during 1995, and (2) that MSLIC had received over $5 million annually for the preceding five years in cancer policy premiums alone.
In § 12-13-11, Ala.Code 1975, Alabama has codified a number of grounds for granting a new trial. Hancock v. City of Montgomery, 428 So.2d 29, 32 (Ala.1983). Among these grounds is "[e]rror of law occurring at the trial and properly preserved by the party making the application." Section 12-13-11(a)(8), Ala.Code 1975; see also Rule 59(a), Ala.R.Civ.P. We note that "the trial judge may grant a new trial on grounds which might not constitute reversible error on appeal." Bekins Van Lines v. Beal, 418 So.2d 81, 83 (Ala.1982). Among the errors of law historically warranting the grant of a new trial is the trial court's erroneous exclusion of competent evidence during the original trial. See Owen v. McDermott, 148 Ala. 669, 41 So. 730, 730-31 (1906).
Here, the reporter's transcript reveals that during a sidebar conference, counsel for Smith noted that during opening statements, counsel for MSLIC had mentioned that MSLIC was a small company owned by its employees, and contended that these statements "opened the door" and that he was entitled to "respond in kind" to them by eliciting testimony from a corporate representative of MSLIC concerning "how much money the company made last year." At the time, the trial court allowed counsel for Smith to elicit testimony concerning the number of states in which MSLIC did business, but would not allow him to present evidence that MSLIC had made $3 million in the previous year.
Alabama law is clear that, as a general rule, evidence concerning the wealth or poverty of civil litigants is not admissible. Professor Charles Gamble has summarized the governing principles in this area:
1 Charles W. Gamble, McElroy's Alabama Evidence, § 189.05(1) (5th ed.1996) (footnotes omitted). However, Professor Gamble continues:
Id. at § 189.05(2)(c) (emphasis added; footnotes omitted); see also City of Gulf Shores v. Harbert Int'l, 608 So.2d 348, 353 (Ala.1992) ().
We note that under the general rule, not only are individuals not permitted to refer to their wealth or poverty, but corporations, too, may not inject any proof of their size into a lawsuit. For example, in Horton v. Continental Volkswagen, Inc., 382 So.2d 551 (Ala.1980), counsel for an automobile dealer referred to his client in opening statements as "Continental Volkswagen, a small private domestic corporation." Noting that "counsel may not by an opening statement introduce immaterial and prejudicial matter," the Alabama Supreme Court reversed a judgment entered on a jury verdict in favor of the dealer, concluding that such a statement "necessarily contain[s] the aspects of wealth (and therefore of net worth)." 382 So.2d at 552. Similarly, in Baldwin Mut. Ins. Co. v. Brantley, 518 So.2d 32 (Ala.1987), the Alabama Supreme Court was confronted with the question whether testimony from an insurance agent to the effect that his employer was "a very small company" opened the door to evidence concerning how many policyholders the company had in Alabama; it held that to allow such rebuttal evidence "was proper impeachment procedure." 518 So.2d at 35.
The record does not reveal the precise wording of MSLIC's opening statement; however, the parties and the trial court were necessarily familiar with its contents. While the omission of counsel's precise remarks from the record itself militates in favor of our affirming the trial court's grant of a new trial (see Jefferson Iron & Metal Co. v. Bethune, 263 Ala. 131, 132, 81 So.2d 674, 675-76 (1955) ( )), an argument referring to a corporate party as a "small company" would open the door to evidence of corporate profits and receipts that would tend to...
To continue reading
Request your trial-
Ala. River Grp., Inc. v. Conecuh Timber, Inc.
...rebut the statements by the wood dealers' counsel. See 1 McElroy's Alabama Evidence § 14.01 (6th ed. 2009); Mutual Sav. Life Ins. Co. v. Smith, 765 So.2d 652 (Ala. Civ. App. 1998). The record shows, however, that counsel for the wood dealers actually said the following:"They want to talk ab......
-
Terry v. McNeil-PPC, Inc. (In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prods. Liab. Litig.)
...if the defendants "open the door" to such evidence. There is caselaw in Alabama supporting this point. SeeMutual Sav. Life Ins. Co. v. Smith, 765 So.2d 652, 655–56 (Ala.Civ.App.1998) ("The rule under discussion does not operate to exclude evidence of wealth or poverty if such is relevant to......
-
Hathcock v. Wood
...Miller v. Dacovich, 355 So.2d 1109, 1110 (Ala.1978); Johnson v. Harrison, 404 So.2d 337, 339-40 (Ala.1981); Mutual Sav. Life Ins. Co. v. Smith, 765 So.2d 652, 654 (Ala.Civ.App.1998); and McElroy's Alabama Evidence, supra, § 189.05(1). Nevertheless, we have recognized that evidence of this c......