McQueen v. Jones

We have reexamined the record, and, if it be conceded that the retaliatory remarks in argument of plaintiff's counsel were improper, the trial court discharged its full duty in eradicating their effect upon the jury; and the remarks were of such character as that they were eradicable.

In reply to the application made for rehearing, we will let the record speak as to the subject-matter before us:

"In the closing argument of counsel for the plaintiff the defendant objected to a statement of said counsel, and thereupon the following occurred:

"The Court: Mr. Gamble (Attorney for Defendant) state what you object to.

"Mr. Gamble: We object to the argument of plaintiff's attorney where he states 'that Harry Gamble down in his heart would like for this woman to get every dollar she is claiming.' We object to that statement on the grounds that it is highly prejudicial to the defendant, that it is calculated to bias the minds of the jurors, and that said statement has greatly prejudiced the defendant in this case to the extent that he is unable to obtain a fair consideration of the case by the jurors, and defendant hereby moves the court to take the case from the jury and grant the defendant a continuance of the cause on the grounds just recited.

"The Court: Gentlemen of the jury, you are not to consider the statement of the attorney for the plaintiff to the effect that Harry Gamble down in his heart would like for plaintiff to get every dollar she is claiming. He is presumed to think just the opposite.

"Judge Hobbs: (Counsel for plaintiff) I didn't say Harry Gamble, if the Court please, I said Mr. McQueen (meaning the defendant in the case.)

"The argument objected to was as follows; and grew out of the circumstances as follows:

"Hon. Harry Gamble of counsel for defendant, in his argument to the jury, stated in substance that Mr. McQueen was sorry as a man could be that the accident happened; that Mrs. Jones was an invited guest in his car at the time of the accident, and that he would not have hurt her for anything in the world; that he would have rather hurt himself.

"In reply to this argument made by Mr. Gamble, Hon. S. F. Hobbs, counsel for plaintiff, in his closing argument to the jury said in substance: 'From the argument made by Hon. Harry Gamble, as to how extremely sorry Mr. McQueen is that Mrs. Jones was injured, I dare say that if he is as sorry as all that, he might like for Mrs. Jones to get every dollar she is asking for.

"Whereupon, defendant renewed his objection to the statement by counsel for the plaintiff that he meant Mr. McQueen, the defendant, and not Harry Gamble, one of defendant's attorneys, and as grounds for objection assigned the following: That the statement of plaintiff's counsel was highly prejudicial to the defendant, that it was calculated to bias the minds of the jurors, and that said statement had greatly prejudiced the defendant in this case to the extent that he was unable to obtain a fair consideration of the case by the jurors, and moved the court to continue the case on said grounds.

"Thereupon, before ruling on defendant's objection and motion, the court charged the jury they were not to consider the above objected portion of Judge S. F. Hobbs' argument to the jury, and asked each juror, separately, if he could and would completely efface it from his mind in the consideration of this case, and each juror answered the question in the affirmative.

"The court, then after getting such assurance from each of the jurors, overruled the motion of defendant, and the defendant then and there duly and legally excepted.

"Thereupon, the court charged the jury orally, as follows," etc.

In the opinion we set out the material portions of McQueen's testimony. The remarks or appeal to sympathy are beyond the record, and made by defendant's counsel (Alabama Power Co. v. Goodwin, 210 Ala. 657, 659, 99 So. 158); they provoked, produced, invited, and justified the retaliatory argument or remarks of plaintiff's counsel of like nature and in reply thereto, which were within the well-recognized rule of what is termed in the books as "reply in kind" or "invited error" (Tea Java Coffee Co. v. Saxon China Co., 207 Ala. 33, 91 So. 885; Hanners v. State, 147 Ala. 27, 34, 41 So. 973; Clark-Pratt Cotton Mills Co. v. Bailey, 201 Ala. 333, 77 So. 995), applied to arguments of counsel. There is analogy in the like rule applied to the evidence in Hanners v. State, supra; Bank of Phœnix City v. Taylor, 196 Ala. 665, 72 So. 264; Gibson v. Gaines, 198 Ala. 583, 73 So. 929; Lester v. Jacobs, 212 Ala. 614,103 So. 682.

Application overruled.

ANDERSON, C. J., and BROWN and FOSTER, JJ., concur.