Pacific Fire Ins. Co. v. Overton, 8 Div. 600
| Decision Date | 15 November 1951 |
| Docket Number | 8 Div. 600 |
| Parties | PACIFIC FIRE INS. CO. v. OVERTON. |
| Court | Alabama Supreme Court |
Jos. S. Mead, Birmingham, for appellant.
Guin & Guin, Russellville, for appellee.
Appeal from a verdict and judgment in a suit on a policy of fire insurance.
Appellant first seeks to predicate error to reverse on the action of the trial court in limiting its counsel's opening statement to the jury. The record relative thereto shows and only shows the following:
'Objection by Mr. Guin to Mr. Mead's Opening Address to the Jury:
'Mr. Guin: I object to any statement of the evidence in advance.
'By the Court: I sustain the objection.
'By Mr. Mead: I expect to show your Honor what I expect the evidence to show.
'By Mr. Guin: I understand we haven't gone in detail to the jury and I object to counsel doing it.
'By Mr. Mead: It is my purpose to state to the jury what I expect the evidence to show and make such a statement to the jury as will enable them to understand the evidence as it comes.
'By the Court: The attorney can state to the jury the allegations of his pleas and what his defense is but he can't go in detail about what his evidence is.
'By Mr. Mead: Your Honor, I understand, the ruling is that I cannot state to the jury what I expect to show by the evidence.
'By the Court: You can state to the jury the allegations of your pleas but you can't go in detail about what the evidence will show.
'By the Court: The attorney has the right to read his pleas to the jury, he has a right to state to the jury the allegation of his pleas, he has a right to state just what defense he has in the case but he doesn't have a right to take time of court and go in detail about what he thinks his evidence will show.
'By Mr. Mead: We except to the Court's ruling.' (Emphasis supplied)
We have variously expressed the rule in this jurisdiction with reference to the opening statement of counsel to the jury to the general effect that in cases involving issues of fact, counsel may outline what he expects the evidence to show, but its function is merely to indicate the issues of fact to the jury and this right of counsel is not unlimited, but is subject to control by the wise discretion of the trial judge. Wilkey v. State ex rel. Smith, 238 Ala. 595, 598, 192 So. 588, 129 A.L.R. 549, and cases there cited.
Our cases seem not to have considered the extent to which this discretion of the court may possibly be abused to operate to reverse the cause, but we pause now to say that where the party is given full opportunity to introduce his evidence and argue the facts before the jury, our Court Rule 45 would to a considerable extent govern our determination of the question of a reversal.
With reference to the rule, we approve the following statement in 53 American Jurisprudence 357-358, § 455: (Emphasis supplied.)
Looking to the record in the light of these principles, we find ourselves unable to say to what extent, if any, the defendant was prejudiced by the foregoing ruling of the court or whether the court in any way abused its discretion. Just what statement counsel was purporting to make or its extent is not shown, nor does it appear whether the court by its final ruling unduly abridged counsel's right. While the record does disclose that defendant's counsel interpreted the ruling as inhibiting him from stating what he expected the evidence to show, the court did not so interpret the status or so limit him, but by his ruling only forbade him 'to take time of court and go in detail about what he thinks his evidence will show.' (Emphasis ours) In order to invoke revision here of nisi prius action the record, of course, must reflect the error and that it resulted in substantial prejudice to the appellant. Error is not presumed, the appellant having the burden of establishing it. Roubicek v. Roubicek, 246 Ala. 442(2), 21 So.2d 244; Kabase v. State, 244 Ala. 182, 12 So.2d 766; Supreme Court Rule 45, Code 1960, Tit. 7 Appendix. We therefore are unable to pronounce error to reverse in the stated ruling.
It is next contended that the trial court erred in refusing to grant defendant's motion for a new trial on the grounds, first, that the verdict was excessive; second, that it. Roubicek v. Roubicek, 246 Ala. 442(5), evidence showed (a) that appellee had burned or procured the burning of his property; (b) that the policy of insurance was voided by insured by his violation of the provision requiring him to protect and conserve the property after the fire; and (c) that the policy was voided by false swearing by plaintiff in reporting under oath in his proof of loss a greater damage than was actually sustained.
In addressing our remarks to these several propositions we might observe at the outset that counsel for appellant have argued with great cogency in sustention of them, but a studious consideration of the record has convinced us that we would not be justified in overturning the ruling below, refusing the new trial. As regards these respective issues, the evidence was in sharp conflict. And while concededly there was evidence from which the jury might have concluded the several defenses were well taken, there was also substantial evidence which authorized the verdict and in this circumstance, for us to disturb it would be unwarranted.
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