Southern Ry. Co. v. McCants, 6 Div. 632

• Decision Date: 16 April 1935
• Docket Number: 6 Div. 632
• Citation: 26 Ala.App. 442,163 So. 363
• Parties: SOUTHERN RY. CO. v. McCANTS.
• Court: Alabama Court of Appeals

163 So. 363

26 Ala.App. 442

SOUTHERN RY. CO. v. McCANTS.

6 Div. 632

Court of Appeals of Alabama

April 16, 1935

Rehearing Denied June 4, 1935

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for wrongful arrest and malicious prosecution by Robert McCants against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Southern Railway Co. v McCants (6 Div. 804) 163 So. 365.

Stokely, Scrivner, Dominick & Smith, of Birmingham, for appellant.

Harsh Harsh & Hare, of Birmingham, for appellee.

RICE Judge.

We deem it unnecessary to undertake to formulate a statement of the exact degree of binding force, against the party, which assertions of a party's counsel made in opening his case before the court and jury possess.

It seems all but conceded that said statements have considerable weight; and considerable, under the circumstances that here appear, is sufficient as a basis for our decision.

As we understand this case, if appellee was on or upon appellant's train, at the time and place fixed by all the testimony, he was, or at least it was open to the jury to find that he was, guilty of a violation of the terms of section 6026 of the Code of the city of Birmingham of 1930 to wit, being "found on the premises of another in the night time, under suspicious circumstances."

Whether or not appellee was or was not upon said train at the time he was arrested became, then, a vital fact to be considered by the jury. Their verdict seems of necessity to have been based upon the finding that he was not upon the train at said time.

Upon this finding, we observe that appellee's distinguished counsel, in making his opening statement to the jury, used the following language:

"May it please the Court and, gentlemen of the jury, this suit is by this negro Robert McCants, plaintiff, against several defendants. ***

"The arrest was made under circumstances something like this: On or about the 21st day of December of last year this boy, the plaintiff, Robert McCants, had been up to the T.C.I. commissary to get his allotment of flour. I believe it was Red Cross flour, or it was flour that was being distributed there. He had stayed in line for a substantial length of time, and the allotment had run out before he got up to his place; and he then left, with several others, who were similarly disappointed, and started on back to their places of residence; and, as they went back across the crossing of the Southern Railroad, at Pratt City, I think, where the Frisco and Southern tracks cross, or near there, on the public highway road at that point, a train of the defendant came up and blocked the crossing while he was there waiting for the train to come through, waited some 8 or 10 minutes. Finally he started on through the coupling, like so many of you have done and so

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