MacArthur Bros. Co. v. Middleton , 200 Ala. 147 ( 1917 )

We think that a fair interpretation of count 3 as last amended charges but one continuous conversion of the articles described covering the period there designated, and that there was no error in overruling the defendant's demurrer to said count. Corona Coal Co. v. Bryan, 171 Ala. 86, 54 So. 522, Ann. Cas. 1913A, 878. The proof also shows that the conversion was commenced in December and terminated in February as charged in the count.

We think that the rulings of the trial court upon the evidence and charges, with reference to the agreement that the houses were to remain upon the land after the termination of the lease, was in conformity with the opinion upon the former appeal of this case. 71 So. 461, 196 Ala. 1.

Moreover, while there was some evidence upon the part of the defendants indicating an intention on their part that the buildings would be what is termed, "trade fixtures," yet we do not think that this evidence, when taken with the length of the lease and the substantial and durable nature of the buildings, overcame the prima facie intendment that they became a part of the realty, and that they should be so treated, in the absence of some agreement or understanding that the same should be removed. In other words, the Alabama Power Company should have reserved the right to treat buildings of this character as trade fixtures by providing for the removal of same upon the expiration of the lease.

We do not think that the parts of the oral charge excepted to constituted reversible error, when taken and considered with other parts of the said oral charge.

There was no error in refusing charge 10, requested by the defendant. If not otherwise bad, it gave the defendant the right to remove the houses, notwithstanding the agreement that they should remain upon the land.

There was no error in refusing the defendant's requested charge 11. It exceeds the degree of indulgence in favor of the tenant as laid down in the case of Walker v. Tillis, 188 Ala. 313,66 So. 54, L.R.A. 1915A, 185, Ann. Cas. 1916E, 752. Besides, every expression in an opinion does not afford a basis for a special written charge. Moreover, the articles dealt with in the Walker Case, supra, were of a very different nature and character, and were designed and used for a different purpose than the buildings in question.

There was no error in refusing charge 14 requested by defendants. It assumes that the rock bin was a mere trade fixture, and that the defendants had the right to remove same unless the same had been previously reserved to the plaintiff, when the evidence was sufficient, if not conclusive, to show that it was intended as a permanent, rather than a trade, fixture.

We have considered the assignments of error relating to rulings upon the evidence, and find no reversible error in this respect. The rulings were either free from error, or were rendered harmless by the subsequent exclusion of certain portions of same, or by charging out the plaintiff's counts 1 and 2, or by virtue of the fact that these counts were in when the evidence was received.

We think, however, the case should be reversed for the failure of the trial court to exclude the remarks of counsel as to the generosity of the government and the state to the defendant power company, as well as for the remarks of the court in approbation of the argument and the addition that they were given free of taxation. These questions were neither relevant nor pertinent to any issue involved, and the only function that could be performed by the resort to same was to prejudice and inflame the mind of the jury against the defendants. Cases should be tried upon legitimate issues, and free from prejudice and passion; and, when it is apparent that improper issues are injected into a case, by argument or otherwise, for the purpose of improperly influencing a jury, and which are reasonably calculated to do so, appellate courts should not hesitate to reverse the case in order that it may be decided only upon proper and legitimate issues, and freed from facts and circumstances calculated to improperly prejudice and influence the jury. No higher duty rests upon appellate courts than to see that cases are fairly and properly tried. We are of the opinion that the foregoing argument and remarks of the court were probably injurious to the defendant.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

MAYFIELD, SAYRE, SOMERVILLE, and THOMAS, JJ., concur in opinion. McCLELLAN and GARDNER, JJ., concur in conclusion.