Alabama Power Co. v. Goodwin , 210 Ala. 657 ( 1923 )

In their brief on application for rehearing, counsel for appellee have presented an earnest and spirited criticism of our ruling for reversal of the judgment, which has had our careful and thorough consideration. We wish to notice some of the principal grounds of complaint.

1. It is strenuously insisted that the excluded argument of defendant's counsel was not based on the evidence, in that it included the assumption that a representative or agent of the defendant was in attendance upon her "during all the time the plaintiff was in the hospital in Gadsden and Birmingham." This insistence is fully refuted by a simple reference to the testimony: On direct examination plaintiff stated that she was in bed every day for eight months following her injury, and that she had a special trained nurse all of the time. On cross-examination she testified:

"I think I was there just fourteen days when I just had the attention from the hospital nurses. * * * All the rest of the time the company had a special nurse for me and kept that nurse with me all the time."

Dr. Guice, the defendant's local surgeon at Gadsden, testified:

"During the time she [plaintiff] was in the Gadsden General Hospital I saw her anywhere from two to five and six times a day, during that entire time."

Dr. Benedict, the defendant's chief surgeon, resident at Birmingham, went to Gadsden and assisted in the operation on plaintiff. He testified:

"She went to Birmingham to St. Vincent's Hospital, and was there about six months. * * * I visited her during that time every day, approximately every day; I may have missed some."

Plaintiff testified also that Drs. Benedict, Morgan, and Guice were the defendant company's doctors; and that —

"Dr. Benedict attended me while I was in the hospital in Birmingham; sometimes he would call in other doctors."

We do not think that impartial minds can differ upon the conclusion that this testimony fairly and fully supported the statement of defendant's counsel as to the character and extent of the attendance upon plaintiff by the defendant's surgeons and nurses.

2. In their original brief, in support of their own permitted argument, counsel for plaintiff cited the following as a correct statement of the rule regulating argument:

"It is an advocate's privilege to make such deductions as he may think the evidence justifies, and he is allowed a wide latitude in that respect so long as he keeps to a discussion of the issues and evidence. He is entitled to draw his own conclusions from the testimony on the trial, and to state his view of the facts testified to by the witnesses without incurring the charge of misstating the facts. * * * If counsel in argument to the jury should draw illogical, unreasonable, or even absurd deductions from the evidence, the remedy is not interference by the court, but exposure and answer from opposing counsel." Shawnee v. Sparks, L. A. 1918D, 29.

But in defending the court's exclusion of the argument of defendant's counsel, the brief writer summarized as follows:

"Such an argument was not a proper argument. No legitimate deduction that the defendant was not liable for punitive damages; no legitimate deduction that could affect the amount of these damages could be drawn from the fact [stated in the argument]."

Manifestly, this criticism does not comport with the authority elsewhere approved by counsel.

3. We have examined the decisions cited and reviewed by counsel. Most, if not all, of them are cases where the evidence which formed the basis of the argument in question was either not before the jury at all, or else was admitted for an expressly limited purpose. In such cases there can be no difference of opinion as to the propriety of excluding the argument. See, especially, Waldron v. Waldron, 156 U.S. 361,15 Sup. Ct. 383, 39 L. Ed. 453, and Hanks v. Yellow Cab, etc., Co.,112 Kan. 92, 209 P. 977.

To the numerous examples suggested by counsel in illustration of the error of permitting such an argument, it is a sufficient answer, we think, to say that if the evidence involved in the argument is illegal evidence it should have been seasonably objected to and excluded. If admitted for a special and limited purpose only, either party may ask, and is entitled to ask, an instruction that it cannot be considered for any other purpose than that for which it was admitted.

But the evidence here involved was offered and admitted generally, and without limitation of any kind.

In B. R. E. Co. v. Wildman, 119 Ala. 547, 552, 24 So. 548,550, it was said, per Brickell, C. J.:

"Testimony tending to show the fact that no notice of or information concerning plaintiff's accident was given to defendant or any of its representatives previously to the institution of this suit, and that the first intimation had by defendant that plaintiff claimed to have been injured was when the summons and complaint were served, was offered by defendant and received without objection. Parties have an undoubted right to try their case on illegal evidence, if they so desire, and if illegal evidence is admitted without objection, it is the right and duty of the jury to give it such consideration as it would be entitled to if legal evidence; and it is also the right and duty of counsel in argument to aid the jury in determining the weight and effect it should have. During his argument of the case, defendant's counsel stated to the jury that 'in determining the bona fides of plaintiff's claim that he was hurt in the manner testified to by him, the jury could and should look to and consider that he never at any time before he brought this suit, gave the defendant any notice or information of his alleged claim that he had been hurt.' To this part of the argument an objection by plaintiff was sustained, and the trial court stated to the jury that the argument was improper and should not be considered by the jury. In this the court erred, since its ruling was an invasion of the province of the jury, and, in effect, an instruction to the jury that they could give no consideration to a part of the evidence in the case which had been admitted generally and without limitation of any kind. It is distinctly the province of the jury to consider each part of the evidence, to weigh it in connection with all the other evidence, and to draw from it such inferences, and give it such weight in determining their verdict, as they may think it is entitled to; and it is clearly the right and duty of counsel to comment on such testimony, to state the inferences he may think arise from it, and to aid the jury in this manner in arriving at a correct conclusion. Any invasion by the court of these respective rights of jury and counsel is unwarranted, and constitutes reversible error. Cross v. State, 68 Ala. 482; Hobbs v. State, 74 Ala. 41."

We think this is a correct statement of the law in such cases, and that it answers all of the apprehensions and objections presented by counsel.

The error of counsel's conception of the case is found in this contention made in the brief, viz.:

"It certainly cannot be the law that counsel can be permitted to suggest to the jury that it consider a combination of facts in evidence for a purpose and in a manner which the court cannot and would not instruct them that they should consider the same."

This confuses the functions of court and counsel. Counsel may discuss the evidence, draw inferences, make appeals, and urge conclusions, in ways entirely forbidden to the judge. Certainly, the trial judge could not have properly instructed the jury either to consider or to disregard the evidence referred to by defendant's counsel in the statement in question, in their consideration of punitive damages; for, in either case such an instruction would be a clear invasion of the province of the jury, and an attempt to guide them in the exercise of their discretion. It is, of course, the judge's duty, in submitting the question of punitive damages to the jury, to instruct them that in fixing the amount of such damages, if awarded, they should consider the character of the wrong and the necessity of preventing similar wrongs; and that such an amount should be imposed as the exigencies of the case required, not to exceed the amount claimed. Coleman v. Pepper,159 Ala. 310, 49 So. 310. But we are not aware of any precedent for the practice of excluding from the jury's consideration, upon that aspect of the case, any fact or facts legitimately before them as general evidence in the case. Nor can the judge's refusal to exclude an argument made to the jury by counsel be regarded as an approbation of the argument, but only of counsel's right to make it, however illogical or even absurd it may appear to be.

4. It is now insisted that the statement in question was not an argument, but must be regarded and treated as an attempt by counsel to instruct the jury that they should consider the facts referred to as a matter of legal duty. This theory is too obviously without merit to require argumentative negation.

The application for rehearing will be overruled.

ANDERSON, C. J., and GARDNER, MILLER, and BOULDIN, JJ., concur.

SAYRE and THOMAS, JJ., dissent.