Osborne Truck Lines, Inc. v. Langston

• Decision Date: 08 June 1984
• Citation: 454 So.2d 1317
• Parties: OSBORNE TRUCK LINES, INC., and Samuel Dale Cartee v. Reba Mae LANGSTON, a minor, etc. OSBORNE TRUCK LINES, INC., et al. v. James Samuel LANGSTON III, a minor, etc. OSBORNE TRUCK LINES, INC., et al. v. Tommy WHITTEN. 82-764, 82-1177 and 82-1178.
• Court: Alabama Supreme Court

Page 1317

454 So.2d 1317

OSBORNE TRUCK LINES, INC., and Samuel Dale Cartee v. Reba Mae LANGSTON, a minor, etc.

OSBORNE TRUCK LINES, INC., et al. v. James Samuel LANGSTON III, a minor, etc.

OSBORNE TRUCK LINES, INC., et al. v. Tommy WHITTEN.

82-764, 82-1177 and 82-1178.

Supreme Court of Alabama.

June 8, 1984.

Rehearing Denied July 27, 1984.

Ralph M. Young and Mary Anne Westbrook of Gonce, Young, Howard & Westbrook, Florence, for appellants.

Henry H. Self, Jr., Florence for appellee Reba Mae Langston.

Steve Gargis for Gargis & Gargis, for appellee James Samuel Langston.

Charles D. Rosser, Tuscumbia, for appellee Tommy Whitten.

ALMON, Justice.

These consolidated appeals come here after a trial of the personal injury actions of the three minors, who are the appellees. The jury awarded the children a total of over 2.5 million dollars compensatory and punitive damages for their injuries sustained in the collision between their vehicle and the truck driven by defendant Dale Cartee for defendant Osborne Truck Lines, Inc. The trial court entered judgments on the verdicts and denied defendants' motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

Defendants raise numerous allegations of error relating to closing arguments of plaintiffs' counsel, evidentiary rulings, instructions to the jury, and other matters.

The accident occurred in the following manner. Dale Cartee drove a tractor-trailer truck as an employee of Osborne Truck Lines. On the day of the accident, September 15, 1981, he arose at 4:00 a.m. after spending the night in Missouri. He drove to St. Louis, where he delivered his cargo and picked up another load. After delivering that cargo in O'Fallon, Missouri, Cartee began his return trip, arriving in Muscle Shoals, Alabama, around 8:00 p.m. He called his dispatcher, who instructed him to proceed to the Reynolds Metals plant in Sheffield, which was only a few miles away.

As he traveled east approaching the Reynolds plant on 2nd Street in Sheffield, Cartee prepared to turn left to enter the plant gate. He testified that he turned on his left turn signal about 150 yards before he reached the turn. As he turned across the two westbound lanes of 2nd Street, he heard the crash of a vehicle hitting the side of his truck. He stopped the truck and walked around it, where he saw the plaintiffs' Volkswagen van wrecked against the side of his trailer. Reba Langston was in the back seat, James Samuel (Sonny) Langston III had been thrown out the door, and Tommy Whitten was pinned in the front seat.

Tommy suffered fairly minor injuries: scrapes, bruises, and a broken rib. Reba and Sonny suffered severe injuries, including numerous broken bones and lacerations. Reba and Sonny were both in body casts for several months, but eventually recovered with some permanent impairment. Reba has a disfiguring scar across her neck. The jury awarded $1,525,000.00 to Reba, $1,000,000.00 to Sonny, and $56,000.00 to Tommy.

Closing Arguments

The defendants argue first that the trial court erred in overruling objections to portions of the plaintiffs' closing arguments. The first of these matters concerns a question to the jury about how much it would take to punish defendant Osborne Truck Lines as a corporation. In support of the proposition that this was improper argument, defendants cite such cases as Liberty National Life Ins. Co. v. Kendrick, 282 Ala. 227, 210 So.2d 701 (1968); Alabama Fuel & Iron Co. v. Andrews, 212 Ala. 336, 102 So. 799 (1925); and Alabama Fuel & Iron Co. v. Williams, 207 Ala. 99, 91 So. 879 (1921).

While some of the argument may have been improper, the only ruling presented for our review is the overruling of an objection during rebuttal argument by one of plaintiffs' attorneys. The same attorney had asked essentially the same question without objection during his initial closing argument. Cf. B & M Homes, Inc. v. Hogan, 376 So.2d 667, 673 (Ala.1979), applying the rule that prejudicial error may not be predicated upon the admission of evidence which has been admitted at some other stage of the trial without objection.

Moreover, defense counsel made statements in closing argument regarding the status of the defendants, including the following:

"If they talk to you about a corporation, and talk to you about a corporation as if it was some of--it's people and a corporation can only be responsible and liable in a court of law like this if the people in the corporation did something wrong and therefore do not let your judgments of this be swayed by thinking that it's something off over yonder separate and apart from the men and the women that make it up because it's only that, it's only the people who are part of the corporation.

"... We all have prejudices. I'm afraid that a lot of us have prejudices against trucking companies, truck drivers ....

"... But don't let the fact that the defendants are a trucking company and a truck driver determine the way in which you rule in this case. I would ask you, under the pledge that you gave me for my clients, to decide this case as if it was--what stereotype do we have, a little old school teacher, that's supposed to be driving my mother back here driving the car down there ...."

The context of the argument to which defendants objected shows that it was a reply in kind to statements of the sort quoted above:

"Mr. Young and them have talked about sympathy. We don't want your sympathy; we want y'all to do your duty, but at the same time we don't want you to be held back by a fear that you're going to be unfair to somebody. They say don't be unfair to Osborne because it's a corporation. They say a corporation is made up of people and they're right. But we can't sue those people, we have to sue the corporation. They say don't be unfair and prejudiced just because it's a corporation but at the same time you've got to consider in deciding on the question of punitive damages, what it would take to punish this corporation. Can you punish Osborne corporation with an amount of money that would punish one of us? Ten thousand dollars would punish me, but would that punish this corporation that they're asking you to compare with? I told you in the beginning--[objection interposed]."

Arguments which are replies in kind or are provoked by arguments of opposing counsel do not amount to reversible error. Lawrence v. Alabama Power Co., 385 So.2d 986 (Ala.1980); Central of Georgia Ry. Co. v. Phillips, 286 Ala. 365, 240 So.2d 118 (1970); St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683 (1961). The remarks to which defendants objected come sufficiently within this rule that the overruling of the objection was not reversible error.

Defendants next argue that plaintiffs' counsel improperly requested the jurors to consider how much they would take to have their children injured as these plaintiffs were, and that the trial court improperly overruled defendants' objections. This colloquy went as follows:

"Mr. Young is probably going to say something about a suit for five million dollars. Well, let me talk about a family. Talk about a family and a man comes in and says I'm going to give you five million dollars family, but here's what you got to do. You got to agree to let your two children be in a van that's in a crash, like what these children were in. And you've got to agree--

"Mr. Young: Your Honor, we object to the argument that Mr. Self is making at this time. It's an inappropriate argument to argue that before an accident a person could be offered any amount of money to have someone undergo injuries. It is an improper argument to use that as measure of damages for award of damages after an accident has occurred. It is an argument that Mr. Self knows is inappropriate. We again request the Court to request Mr. Self to argue things he knows is proper. That just simply is not an appropriate argument and Mr. Self knows that it isn't.

"By the Court: Overruled.

"Mr. Self continues; And you've got to agree to have them both busted up, horribly injured, miserably twisted on the roadway. And you've got to agree that they go through all these operations and all this pain and all these body casts, and you've got to agree that they're going to have some permanent problems the rest of their lives. You've got to agree that they face death. Would you take five million dollars?

"Mr. Young: Your Honor, at this time we renew our objection that he has completed it [sic]. That is an improper argument and we move for the Court to instruct the jury that it is not a proper argument, it is not a measure of damages in Alabama, nor a legal way to measure damages, what a person would take in anticipation in advance of an accident to go through an injury such as this.

"By the Court: Overruled."

"Mr. Self continues: If they came to this family and said unless you pay me five million dollars this is going to happen, I know I'd mortgage my eternal soul to come up with that money to keep it from happening to my kids. And why is this any less important than property damage? If it was Osborne's truck and they had a cargo and they had a trailer they'd want every cent. If they agree to haul for somebody and they don't pay them, they want every cent. And see they get into it voluntarily.... These kids didn't agree to do this voluntarily. Their claim is more sacred than a contract claim...."

A request that the jury put themselves in the place of the plaintiff, made as an appeal to the jurors' feelings and passion is improper argument. Estis Trucking Co. v. Hammond, 387 So.2d 768 (Ala.1980). But see Fountain v. Phillips, 439 So.2d 59 (Ala.1983), and Atkins v. Drake, 437 So.2d 469 (Ala.1983), finding no prejudice in closing remarks.

The context of the objected-to argument shows that it was an allegorical discussion of an imaginary family delivered to illustrate a point about damages. While the particular remark, "Would you take five million dollars?" has the...