Pacific Mut. Life Ins. Co. of California v. Marks, 6 Div. 629

• Decision Date: 23 May 1935
• Docket Number: 6 Div. 629
• Citation: 230 Ala. 417,161 So. 543
• Parties: PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. MARKS.
• Court: Alabama Supreme Court

161 So. 543

230 Ala. 417

PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. MARKS.

6 Div. 629

Supreme Court of Alabama

May 23, 1935

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Suit by John Scott Marks against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant appeals.

Affirmed.

London Yancey, Smith & Windham and J.K. Jackson, all of Birmingham for appellant.

Bradley, Baldwin, All & White, of Birmingham, for appellee.

ANDERSON Chief Justice.

We may concede that counsel in argument should not be so restricted as to prevent indulgence, by way of illustration, in historical facts and facts concerning public characters, and may allude to principles of divine law relating to transactions of men as may be appropriate to the case. We may also concede that the present occupant of the "White House" has, as a matter of common knowledge, a bodily infirmity, but we fail to see that such a physical condition on his part has an appropriate bearing, by way of analogy or otherwise, upon the case at bar, as the occupation and duties of this plaintiff are quite dissimilar to those of the President. At any rate, we do not think the trial court committed reversible error in excluding this reference of defendant's counsel to the physical condition of the occupant of the "White House." Nor was there prejudicial error in the remarks of the trial court when excluding this allusion, as it was but a legitimate admonition to the jury.

So much of the argument of defendant's counsel embodied in the third assignment of error was highly improper, and was properly excluded. There is nothing in the record to indicate that Mr. Arant, counsel for the plaintiff, expressed or entertained such views imputed to him concerning the witness, Mrs.

Crews. This argument is in line with that heretofore condemned in the case of Birmingham Railway, Light & Power Co. v. Drennen, 175 Ala. 338, 349, 57 So. 876, Ann.Cas.1914C, 1037.

Whether or not the question to Dr. McLester, embodied in the sixteenth assignment of error, was so defective in form as to justify the trial court in sustaining the plaintiff's objection to same matters not, as it affirmatively appears that the defendant got the full benefit of the facts thereby sought in the subsequent, unobjected to testimony of the witness, Dr. McLester.

We cannot agree with counsel for the appellant that it had the right to this evidence to rebut evidence of a similar character brought out by the plaintiff. We do not think that the questions set out in appellant's brief, pages 36 and 37, as asked by the plaintiff and answered, are identical or similar to the questions asked by the defendant, with perhaps the exception of one to Dr. Stubbins, page 32 of the record. It must be noted, however, that the answer of the witness was not objectionable. He did not attempt to state the result that the plaintiff's physical condition would have upon his ability to labor. He merely stated the nature and character of his condition during the period...