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Birmingham Water Works Co. v. Williams

Supreme Court of Alabama
Mar 22, 1934
153 So. 268 (Ala. 1934)


6 Div. 384,

December 21, 1933. Rehearing Denied March 22, 1934.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy, Judge.

Benners, Burr, McKamy Forman, of Birmingham, for appellant.

If improper argument of counsel to the jury is of such a character as to fall within that class which is improper and prejudicial, and the evil influence and effect cannot be eradicated from the minds of the jury by the admonition of the court, a new trial should be granted. Birmingham E. Co. v. Ryder, 225 Ala. 369, 144 So. 18; Pryor v. Limestone County, 225 Ala. 540, 144 So. 18; Birmingham Baptist Hosp. v. Blackwell, 221 Ala. 225, 128 So. 389; American Ry. Exp. Co. v. Reid, 216 Ala. 479, 113 So. 507; Williams v. State, 25 Ala. App. 342, 146 So. 422; Birmingham E. Co. v. Mann, 226 Ala. 379, 147 So. 165; Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837.

J. Reese Murray, of Birmingham, for appellee.

The argument was not of that character as to have been ineradicably prejudicial. Birmingham R., L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Birmingham R., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; Metropolitan L. I. Co. v. Carter, 212 Ala. 212, 102 So. 130; Sanitary Market v. Hall, 223 Ala. 525, 137 So. 435; Brewer v. Varner, 207 Ala. 466, 93 So. 448, 450. Defendant's objection was sustained, and there was no error of which defendant can complain. Life C. Co. v. Cain, 217 Ala. 301, 116 So. 154; Beaird v. State, 219 Ala. 46, 121 So. 38, 39; Birmingham R, L. P. Co. v. Gonzalez, supra; Alabama P. Co. v. Elmore, 222 Ala. 6, 130 So. 413, 415; Birmingham E. Co. v. Cleveland, 216 Ala. 455, 113 So. 403; Birmingham E. Co. v. Edge, 22 Ala. App. 279, 114 So. 791; Alabama L. S. Co. v. Adams, 218 Ala. 647, 119 So. 853, 860; Jones v. Colvard, 215 Ala. 216, 109 So. 877; Reed v. Robinson, 213 Ala. 14, 104 So. 130; Anderson v. State, 209 Ala. 36, 95 So. 171; Harris v. Harris, 211 Ala. 222, 100 So. 333; Fagan Peel Co. v. Harrison Co., 16 Ala. App. 470, 79 So. 144.

The argument of plaintiff's counsel, as set out in the first assignment of error, not only injected in the case the question of the defendant cutting off water from its customers when not able to pay for same (an issue not involved), but also referred to the poverty of the plaintiff and inferentially, at least, to the defendant as "powerful" and was highly improper. The trial court sustained an objection to same and attempted to eliminate the first part from the consideration of the jury, but gave no positive or affirmative instructions as to the allusion to the poverty of the plaintiff and the "powerful" defendant. Moreover, this is of that class of argument the poisonous effect of which cannot well be eradicated. Pryor v. Limestone County, 225 Ala. 540, 144 So. 18, and cases there cited.

The trial court erred in not granting the defendant's motion for a new trial and the judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

THOMAS, BROWN, and KNIGHT, JJ., concur.

On Rehearing.

We are cited to several cases to the effect that argument of counsel did not constitute reversible error. The most pertinent one is the case of Alabama Power Co. v. Bruce, 208 Ala. 423, 96 So. 346, but an examination of this case shows that it is easily differentiated from the case at bar as the argument there was justified as a legitimate reply to certain argument of opposing counsel, the court intimating that it would have been bad had counsel intended directly or indirectly to intimate to the jury that they should render a verdict for the plaintiff because the family was poor. Here, we have reference not only to the poverty of the plaintiff but to the defendant as the "powerful." Moreover, we do not mean to hold that the poisonous effect of so much of the argument as was excluded by the trial court had been or could be entirely removed from the mind of the jury.

Nor can we hold that the argument was not injurious because the plaintiff was entitled to a verdict, as matter of law, as the defendant's evidence tended to relieve it of responsibility for the creation or existence of the hole or opening into which the plaintiff stepped, or that said argument did not augment the amount of damages awarded.

Rehearing denied.

THOMAS, BROWN, and KNIGHT, JJ, concur.

Summaries of

Birmingham Water Works Co. v. Williams

Supreme Court of Alabama
Mar 22, 1934
153 So. 268 (Ala. 1934)
Case details for

Birmingham Water Works Co. v. Williams

Case Details


Court:Supreme Court of Alabama

Date published: Mar 22, 1934


153 So. 268 (Ala. 1934)
153 So. 268

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