Travis v. Hubbard
Decision Date | 05 June 1958 |
Docket Number | 4 Div. 932 |
Citation | 104 So.2d 712,267 Ala. 670 |
Parties | Doris J. TRAVIS, pro ami v. Milton Victor HUBBARD. |
Court | Alabama Supreme Court |
Leland G. Enzor and Jas. M. Prestwood, Andalusia, for appellant.
A. R. Powell, Jr., and Tipler & Fuller, Andalusia, for appellee.
Plaintiff sued the defendant for injuries resulting from an automobile collision between vehicles driven by the parties. There was a verdict and judgment for the defendant and a motion for a new trial which was denied. The plaintiff has appealed from the judgment in behalf of the defendant and assigned errors as to several matters that occurred during the course of the trial.
One of the matters complained of is part of the closing argument of counsel for the defendant. For this argument to be properly understood certain events that took place during the trial should be borne in mind. The defendant called as a witness the highway patrolman who investigated the accident. During this witness's direct testimony the following occurred:
'Mr. Prestwood: We object to that, if the Court pleases.
'The Court: Sustain the objection.
'Mr. Tipler: We except.
'Mr. Prestwood: We object to that.
'The Court: Sustain the objection.
'Mr. Tipler: We except.
* * *
* * *
'Mr. Prestwood: Now we object.
'The Court: There is a way to do that, but not that way though.
'Mr. Tipler: I have to confess I don't know how except to ask him.
'Mr. Prestwood: We object.
'The Court: Sustain the objection.
'The Court: You asked him if he marked that, and that's not the way to do it.
'Mr. Prestwood: We object.
'Mr. Tipler: From his investigation he found nothing improper.
'The Court: Sustain the objection.
'Mr. Powell: We except.
'Mr. Prestwood: We object to that.
'The Court: Sustain the objection.
'Mr. Tipler: We except.
'Mr. Prestwood: We object and ask that counsel be instructed to refrain from a course of interrogation that he admittedly by his demeanor knows that he can't get in evidence the way he is doing it.
'The Court: Sustain the objection.'
On one or more occasions the defendant offered the patrolman's report in evidence but the trial court refused to admit it.
The record recites the following:
'Further in his argument to the jury, Mr. Tipler made the following statement: 'Because he knows here is really the report of the patrolman, and he knows that if you were allowed to see it you wouldn't be back there two minutes.''
Whereupon, the following colloquy took place:
'Mr. Prestwood: Now we object to that if the Court please.
'The Court: Overrule.'
The above argument was manifestly improper. There is certainly no point in excluding illegal evidence from a jury if it can still be argued to them. In many cases the evidence kept from the jury would not be near so harmful as an argument such as the above. By analogy we point out the cases that have held that the repeated attempt to get illegal evidence before the jury may in itself be sufficient cause for reversal. In Porter Coal Co. v. Davis, 231 Ala. 359, 165 So. 93, 97, we stated:
The proposition was recently discussed in Pearson v. Birmingham Transit Co., 264 Ala. 350, 87 So.2d 857, 860. The following language from that case is pertinent to our consideration:
We have no hesitancy in holding that the referred to argument is improper and the trial court's overruling the objection thereto is reversible error.
But it is argued by appellee that 'Questions to be reviewed on appeal must first be presented to the trial court by motion for a new trial, and questions not so presented cannot be considered on appeal'. The motion for a new trial in the instant case did not mention the improper argument which we have discussed. Appellee cites the following cases in support of the above proposition of law: Pearson v. Birmingham Transit Co., 264 Ala. 350, 87 So.2d 857; Davis v. Smitherman, 209 Ala. 244, 96 So. 208; Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665; Batson v. State, 216 Ala. 275, 113 So. 300; Pierce v. Floyd, 38 Ala.App. 439, 86 So.2d 658. None of these cases supports the contention. In the first cited case the error assigned was the overruling of the motion for a new trial. The second case involved the excessiveness of a verdict, but no such ground was contained in the motion for new trial so as to...
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Holt v. State Farm Mut. Auto. Ins. Co.
...and counsel cannot fail to understand it." Jay v. Sears, Roebuck & Co., 340 So.2d 456 (Ala.Civ.App.1976); see also Travis v. Hubbard, 267 Ala. 670, 104 So.2d 712 (1958). The instant case comes within this exception. The objection raised by counsel for the Holts was sufficient to make known ......
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State v. Dunlap
...condemnor is entitled to a review of the rulings admitting the evidence, whether condemnor moved for new trial or not. In Travis v. Hubbard, 267 Ala. 670, 104 So.2d 712, we held that rulings on admission or rejection of evidence may be reviewed on appeal without a motion for a new The given......
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Porter v. Alabama Farm Bureau Mut. Cas. Ins. Co.
...on the Indiana rule, but we endeavor to make clear why we do not think that the Indiana rule is the law in Alabama. In Travis v. Hubbard, 267 Ala. 670, 104 So.2d 712, this court held that rulings on admission or rejection of evidence may be reviewed on appeal without a motion for new trial.......
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...for a new trial. Dean v. Johnston, 281 Ala. 602, 206 So.2d 610; Popwell v. Shelby County, 272 Ala. 287, 130 So.2d 170; Travis v. Hubbard, 267 Ala. 670, 104 So.2d 712. In Popwell, supra, as in this case, the appeal was from the original judgment and the judgment overruling the motion for new......