Louisville N. R. Co. v. Cross , 205 Ala. 626 ( 1921 )

In an earnest argument contesting the soundness of the feature of the opinion delivered on original submission, treating the grounds of the motion for new trial referable to the reading of the report of the Phillips Case (ante) to the court, in the presence of the jury, by plaintiff's counsel, and the charge of the court given in response to the complaint of counsel for defendants (appellants), it is insisted that error affects the conclusion of this court in that particular, and that, if allowed to stand, its precedential character will deflect from, if not thwart, the orderly administration of justice by opening the opportunity for overzealous counsel in future trials to introduce matter foreign to the issues on trial. The court is now, as it was on original consideration, aware of the importance of the question presented; but its sound decision must result from a consideration of all, not some, of the factors that have relation to it. The right of parties to causes, civil or criminal, to be heard through themselves or counsel is fundamental. Const. 1901, §§ 6, 10; Peagler v. State, 110 Ala. 11, 14, 20 So. 363. The enjoyment of this right in the concrete case is committed to the sound, revisable discretion of the trial court. Peagler's Case, supra; Harrison's Case, 78 Ala. 5, 11, 12; 1 Thompson on Trials (2d Ed.) § 951. The basis for appellate review and reversal for error in such a matter lies in the finding that this discretionary power has been abused. Authorities, supra. Since, under our practice, the argument of counsel precedes the instruction of the jury by the trial court, it has been decided here, without discriminating between civil and criminal cases, and subject to the trial court's peculiar control, that, in connection with their arguments, counsel may read correct principles and pronouncements of law to the jury. Robinson v. State, 155 Ala. 67, 75, 76, 45 So. 916; Cahaba Min. Co. v. Pratt, 146 Ala. 245, 254, 40 So. 943; Stewart v. State,78 Ala. 436, 440; Supreme Lodge, etc., v. Gustin, 202 Ala. 246,249, 80 So. 84; Harrison's Case, 78 Ala. 5, 11, 12; Ex parte City of Tuscaloosa, 194 Ala. 559, 563, 564, 69 So. 598, affirming the pertinent holding of the Court of Appeals in City of Tuscaloosa v. Hill, 14 Ala. App. 541, 546, 69 So. 486. In the Pratt Case, supra, it was decided that argument to the jury was not improper where a decision of this court was read to the jury and the endeavor was "to explain to the jury the means by which it might arrive at the proper amount of damages," and that the motion to exclude such statements was well overruled; the court declaring that argument on this matter was permissible, but that the court should instruct the jury as to what was the proper mode of ascertaining the damages. Other of the cases cited support this pronouncement of the Pratt Case. It is also settled in the authorities, supra, that the facts of another case or decision are not proper subjects or elements of argument to the jury.

As appears from the recitals of the bill of exceptions quoted in the original opinion, ante, the subject of appellants' complaint arose out of the argument of plaintiff's (appellee's) counsel to the court, not to the jury; the jury, however, being present during this argument to the court. There was no objection by counsel for defendants (appellants) to the reading of the Phillips Case, or to the reading of any part of the report of that case. There was no request that the jury retire during the reading of the case, of the intention to read the report of which case notice in advance of the reading was given. As the bill of exceptions recites, the only dissatisfaction manifested was that expressed by defendants' counsel during argument following that of plaintiff's counsel who read the Phillips Case, including the statement of the facts, and commented thereon in his argument to the court in the presence of the jury; and this criticism took the form of the correct assertion addressed to the court that the facts in the Phillips Case should not be considered by the jury, and the court acted in consonance with the assertion when it instructed the jury as quoted in the original opinion ante.

In Western Union Telegraph Co. v. Benson, 159 Ala. 275,48 So. 712, this court aptly said:

"While it may not be permissible for counsel to read the facts from the report of another case to the jury as a part of his argument to them (Williams' Case, 83 Ala. 68, 3 So. 743), it is not a breach of propriety for counsel, in presenting the law of the case to the court, to read the report of the facts of the case in connection with the opinion. This is frequently necessary, to give the court a clear understanding of the law. It may be that the court would have the right to exclude the jury from hearing while the law is being thus discussed, and this, we find, the court finally did in the instant case."

The doctrine of the Benson Case is undoubtedly sound; and it was recently reiterated in the Gustin Case, supra, where counsel omitted, after opportunity afforded, to request the retirement of the jury during the reading of a decision of this court.

Much reliance is placed upon Birmingham National Bank v. Bradley, 108 Ala. 205, 208, 19 So. 791, to support the appellants' application for rehearing. The original record in the Bradley Case has been inspected for its service in making clear the observations of the court (at pages 208, 209, of 108 Ala., at page 795 of 19 South.), in these words:

"* * * The interference of the court should have been invoked at the time the unauthorized statements were being made by counsel."

The reversal was not put upon that ground. It appears from the transcript that this observation of the court was a recognition of the fact that objection to the argument there indicated was not taken at the time counsel made the unauthorized argument, just as here there was no objection interposed to the reading of the report of the Phillips Case. Earlier in the opinion in the Bradley Case the court well said:

"Wrong and injurious impressions intentionally made upon the minds of the jurors, by asking improper questions, or making an improper argument to the court in their presence, for the purpose of getting before them facts or statements, not admissible, and which have been ruled out, calculated to prejudice their judgment, demands the prompt interference of the court, and a verdict should not be allowed to stand obtained by such a practice. We will further add, that it was within the discretion of the court to have the jury retire from the courtroom, so as not to hear the discussion in regard to the admissibility of evidence, and counsel have no right to insist that the jury hear his questions, and that the court rule on the objection in their presence."

It will be noted, particularly when the transcript is read in connection with the matter quoted, that this court there predicated the observation upon the fact that counsel improperly persisted in making statements to the court in the presence of the jury, touching matter wholly irrelevant, that had "been ruled out" by the court. Neither the observations of the court in the Bradley Case nor the decision there pronounced are authority upon which to rest a reversal on the point now under reconsideration; and it is equally clear that the quoted doctrine of the Benson Case, supra, more recently announced, is not inconsistent with the observations made in the Bradley Case.

It is insisted that the statement by plaintiff's counsel of the amount of the verdict in the Phillips Case, its facts and the identity of the corporate defendant in both, interjected a matter that could not be eradicated from the jury's mind, and that the verdict was so tainted thereby that it should have been set aside on the motion for new trial. It is manifest that the idea did not at all prevail at the time of the trial, nor was it then even suggested. It is manifest from the quoted recitals of the bill of exceptions that the reading of the report of and comment upon the facts of the Phillips Case to the court, in the presence of the jury, was regarded as a matter susceptible of complete, satisfactory correction through the court's instruction of the jury, which was the course taken by the court. The court evidently entertained this view when the motion for new trial was considered and overruled by it. The coincidence that the verdict rendered was for the same sum awarded in the Phillips Case cannot be accorded the effect of impeaching or reflecting upon the jury's ascertainment of the damages to be assessed under evidence materially different from that shown in the report of the Phillips Case and in circumstances that, if credited by the jury, justified the measure of culpability fixed by the amount awarded.

The application for rehearing is overruled.

ANDERSON, C. J., and SOMERVILLE, THOMAS, and MILLER, JJ., concur.