Summary
In Sinclair v. Taylor, 233 Ala. 304, 171 So. 728, the cases are collected dealing with the several classes of improper arguments or conduct of counsel calling for rulings on objections thereto, motions to exclude, or errors that were ineradicable on due objection and in motions to exclude and instructions to the jury not to consider the same.
Summary of this case from Alabama Gas Co. v. JonesOpinion
6 Div. 992.
January 7, 1937.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Bradley, Baldwin, All White and Kingman C. Shelburne, all of Birmingham, for appellant.
Where argument of counsel is so highly improper and prejudicial that neither retraction nor rebuke would have destroyed its sinister effect, the trial court should on motion grant a mistrial. Anderson v. State, 209 Ala. 36, 95 So. 171; Dannals v. Sylvania Tp., 255 Pa. 156, 99 A. 475, 4 A.L.R. 409; Wagner v. Hazle Tp., 215 Pa. 219, 64 A. 405; Tannehill v. State, 159 Ala. 51, 48 So. 662; Birmingham R. L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas. 1914C, 1037; Brown v. Burrow, 171 Minn. 219, 213 N.W. 890; Romann v. Bender, 184 Minn. 586, 239 N.W. 596; Pryor v. Limestone County, 225 Ala. 540, 144 So. 18; Wolffe v. Minnis, 74 Ala. 386; Standridge v. Martin, 203 Ala. 486, 84 So. 266.
Harrison Kendrick, of Birmingham, for appellee.
Counsel should have ample latitude to argue what has transpired in a case from its inception to the conclusion; the range of comment is within the discretion of the trial judge, which discretion, in absence of showing of abuse, will not be controlled. Crosier v. Crosier, 201 Ill. App. 406; 26 Decennial Digest (Third) Trial, 129, p. 702; Clark-Pratt Cotton Mills Co. v. Bailey, 201 Ala. 333, 77 So. 995; Hanners v. State, 147 Ala. 27, 41 So. 973; Birmingham E. Co. v. Ryder, 225 Ala. 369, 144 So. 18; Moulton v. State, 199 Ala. 411, 74 So. 454; Bridgeforth v. State, 16 Ala. App. 584, 80 So. 158; Alabama I. F. Co. v. Benenante, 11 Ala. App. 644, 66 So. 942; Birmingham R. L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas. 1916A. 543; 38 Cyc. 1489, 1490.
This action was commenced in the circuit court of Jefferson county by Vera Taylor, a negro girl, a minor under 21 years of age, who sued by her next friend, Dave Young, against Pauline G. Sinclair individually and doing business as the A. F. Sinclair Transfer Company, for injuries suffered November 21, 1934. Verdict and judgment was for the plaintiff.
The trial was had on count A as last amended. Demurrer to this count was overruled, and the parties pleaded in short by consent.
Assignments of error challenge the action of the trial court in declining to enter a mistrial on defendant's motion, and in overruling defendant's motion as amended for a new trial.
The cases have been recently collected as to the several classes of improper argument of counsel; so, also, have those dealing with classes of eradicable and ineradicable improper argument of counsel been collected in Birmingham News Co. v. Payne, 230 Ala. 524, 162 So. 116. We need do no more than cite the following: Birmingham Railway, Light Power Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas. 1914C, 1037; Wolffe v. Minnis, 74 Ala. 386; Tannehill v. The State, 159 Ala. 51, 48 So. 662; Anderson v. State, 209 Ala. 36, 95 So. 171; Pryor et al. v. Limestone County, 225 Ala. 540, 144 So. 18; American Ry. Express Co. et al. v. Reid, 216 Ala. 479, 113 So. 507; Birmingham Baptist Hospital., Inc., v. Blackwell, 221 Ala. 225, 128 So. 389; Standridge v. Martin, 203 Ala. 486, 84 So. 266; Wagner v. Hazle Township, 215 Pa. 219, 64 A. 405; Dannals v. Sylvania Township, 255 Pa. 156, 99 A. 475, 4 A.L.R. 409.
We are of the opinion the case should be retried, freed of such prejudicial and ineradicable observations outside of the evidence and made by plaintiff's counsel in his argument to the jury and reflecting upon defendant's counsel. The motion for new trial should have been granted on this ground.
The judgment of the trial court is therefore reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN, and KNIGHT, JJ., concur.