Taylor v. Brownell-O'Hear Pontiac Co., BROWNELL-O

• Decision Date: 21 December 1956
• Docket Number: BROWNELL-O,6 Div. 769
• Citation: 265 Ala. 468,91 So.2d 828
• Parties: Lewell TAYLOR, pro ami Leofice Taylor, v.'HEAR PONTIAC COMPANY.
• Court: Alabama Supreme Court

Page 828

91 So.2d 828

265 Ala. 468

Lewell TAYLOR, pro ami Leofice Taylor, v. BROWNELL-O'HEAR PONTIAC COMPANY.

6 Div. 769.

Supreme Court of Alabama.

Dec. 21, 1956.

Rehearing Denied Jan. 14, 1957.

Hal W. Howard and D. G. Ewing, Birmingham, for appellant.

London & Yancey and James E. Clark, Birmingham, for appellee.

SPANN, Justice.

This is a suit for damages wherein it is alleged that Lewell Taylor, a minor, sustained personal injuries as a result of the negligent operation of an automobile by an agent of the defendant, Brownell-O'Hear Pontiac Company. A jury trial resulted in a verdict and judgment for the plaintiff for $7,500. The defendant filed a motion for a new trial. From a ruling of the court granting the motion and ordering a new trial, this appeal is prosecuted.

The trial judge rested his order granting the new trial solely upon the improper argument of counsel for the plaintiff in his closing argument to the jury. The argument involved in ground 57, being one of the grounds upon which the motion was granted, tended to impress upon the jury the ability of the defendant to pay any judgment the jury might render in the case. The pertinent portion of such argument was in the following language:

"We have also dismissed as to Mr. Ritchie. We don't want to penalize Mr. Ritchie. We are after somebody that can pay."

The impropriety of such argument and the highly prejudicial effect of same upon the minds of the jury cannot be seriously doubted. Such remarks coming from eminent counsel and sustained by the ruling of the trial court were, we think, well calculated to influence the amount of the jury's verdict.

There was a similar problem before this court in the case of American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507. In that case, counsel for the plaintiff in his closing argument to the jury stated, in effect, that the American Express Company, the defendant, would still be in business regardless of whatever verdict the jury might render. There, as here, the defendant objected to such argument, the court overruled the objection and the defendant duly excepted. In that case, we held that the question of the improper argument of counsel was thus properly presented for our review; and further held that the action of the trial court in overruling the objection to such argument was reversible error.

Ground 59, another ground upon which the motion was granted, involved the argument of counsel for plaintiff in his closing argument to the jury in which he stated:

"They accuse Mr. Howard of bribery and Mr. Clark said that Mr. Howard evidently was accusing him of bribery and everything else. I don't know whether a claim agent went out and fixed this thing or not."

Defendant objected, the objection was overruled and an exception reserved, thus properly preserving the matter for our review.

Counsel's preceding remarks had referred to claim agents in the following language:

'* * * It develops some two or three people were out there to get a statement from this woman and she said it wasn't read to her. There were two or three people out there taking those pictures. I have heard of claim agents and I have heard of other people making investigations other than lawyers. * * *'

While we are not willing to say that the clear import of counsel's remarks was to inject insurance in the case, we think such argument was highly improper and...