American Ry. Express Co. v. Reid , 216 Ala. 479 ( 1927 )

Appellee insists on rehearing that the ruling upon argument of counsel is not subject to review because after objection was interposed and overruled, and exception taken thereto, there was no further motion to exclude the remarks of counsel or to direct the jury to disregard them.

In Cross v. State, 68 Ala. 476, a carefully prepared opinion by Stone, J., this court considered at length the office and legitimate bounds of argument, and the method of review, saying, in this regard:

"We sum up, lest we be misunderstood. There must be objection in the court below, the objection overruled, and an exception reserved."

This rule was quoted in headnote 6, under the catch line "how revised."

In Wolffe v. Minnis, 74 Ala. 386, upon objection being made, the speaker said "Oh, well; I'll take it back." Opposing counsel said to the court, "The defendant insists on his objection." The court said nothing, and defendant reserved an exception. There was no motion to exclude. This court, again speaking by Judge Stone, stated in strong terms the duty of the court, even ex mero motu in some cases, and declared that when called to his attention by objection, he should have instructed the jury in clear terms that such remarks were not legitimate argument and should not be considered. In view of the nature of the argument, the judgment was reversed for failure to so instruct the jury.

In Louisville N. R. Co. v. Holland, 173 Ala. 675, 691,55 So. 1001, 1007, it was said: "Had this phase of the argument been objected to and the objection overruled, error would have resulted."

In Anderson v. State, 209 Ala. 36, 43, 95 So. 171, 178, opinion by Justice Thomas, the rules of review as applied under various conditions were restated, with full citation of cases. It was said:

"Generally, improper argument of counsel to or in the presence of the jury is not a ground for a new trial, or the subject of review on appeal, unless there is prompt and appropriate objection by opposing counsel, a ruling by the court, and exception thereto, or a refusal of the court to rule on the question presented by the objection."

Finally, in Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212,216, 102 So. 130, 133, the rule of review is stated thus:

"Where the trial court rules adversely to appellant, or where a motion is duly made to exclude such argument or remark of counsel, and there is adverse ruling and exception reserved, the question can be brought before this court on appeal from such ruling."

The line of cases above, none of which has been overruled, declare in effect that the proper method of invoking action by the court on improper argument, in the first instance, is by prompt and appropriate objection. This calls for a ruling by the court approving or disapproving the legality of the argument. If the ruling is adverse to the objector, a further motion to exclude is a useless formality. Vida Lbr. Co. v. Courson (Ala. Sup.) 112 So. 737.¹ In Birmingham Ry., Light Power Co. v. Gonzalez, 183 Ala. 273, 286, 61 So. 80, 84 (Ann. Cas. 1916A, 543), it was said:

"The effect of our decisions is that a mere objection to already spoken words does not reach the evil aimed at, and that the court must be appealed to to exclude them from the consideration of the jury, failing which there is nothing presented for review by an exception. K. C., etc., R. R. Co. v. Webb, 97 Ala. 157, 163, 11 So. 888; Cutcliff v. B. R. L. P. Co., 148 Ala. 108, 41 So. 873; B. R. L. P. Co. v. Drennen,175 Ala. 338, 57 So. 876, 886."

In Kansas City, M. B. R. Co. v. Webb, 97 Ala. 157, 163,11 So. 888, 891, "defendant excepted to said remark as improper argument. The attention of the court being called to it, the presiding judge told counsel it was improper argument. This was in the hearing of the jury. Counsel replied, 'Well; I withdraw it.' " Discussing this occurrence, the court said:

"To put the court in error under such circumstances, there must be a request that the jury be instructed to disregard such argument, and a refusal by the court to so instruct them. Less than this, and an exception based on the refusal, does not present a case for reversal. This principle, as settled in this state, is correctly set forth in Lunsford v. Dietrich, 93 Ala. 565 [9 So. 308, 30 Am. St. Rep. 79], and the authorities therein cited."

The rule declared in Lunsford v. Dietrich, 93 Ala. 572,9 So. 311 (30 Am. St. Rep. 79), thus approved, was in this language:

"All that was done, as appears from the bill of exceptions, was the noting of an exception to certain language of counsel. Nothing that the court ruled, did or said, is presented for revision; and the functions of this court in its appellate character are strictly confined to the action of the trial courts upon questions which are presented to and ruled upon by them. If the statement complained of was improper, of which we are by no means convinced, the presumption is that it would have been excluded, and the jury duly cautioned against being influenced by it, had the attention of the trial judge been called to it, and his action invoked upon it; and we cannot put him in error for failure to rule on a matter which has never been presented for his decision, or decided by him. Cross v. State, 68 Ala. 476; E. T. V. Ga. R. R. Co. v. Bayliss,75 Ala. 466; Insurance Co. v. Allen, 80 Ala. 571 [1 So. 202]; Nelson v. Harrington [72 Wis. 591, 40 N.W. 228, 1 L.R.A. 719], 7 Am. St. [Rep.] 900; A. G. S. R. R. Co. v. Frazier, ante [93 Ala.] page 45 [9 So. 303, 30 Am. St. Rep. 28]."

It is manifest this case did not contemplate any modification of the rule in the Cross Case, the first cited as authority. It does not say an objection addressed to the court does not invoke his action upon it, but that a mere exception to the remark of counsel does not. The Bayliss Case, also cited, declares the duty of the court upon objection being made to the argument.

In Cutcliff v. Birmingham R. L. P. Co., cited in the Gonzalez Case, the court sustained the objection of counsel, no further action was invoked, and no exception reserved by appellant.

In Birmingham R. L. P. Co. v. Drennen, also cited in the Gonzalez Case, objection to the argument was sustained. No motion to exclude was made. The court failed to take further action to eradicate the harmful effect. Held not reviewable on main appeal "for the reason that his ruling, as far as invoked on the main trial, was in favor of appellant." After full review of cases the cause was reversed for failure to grant a new trial, because of the improper argument. The failure of the court to take prompt and decisive action to eradicate the bad impression is the basis of the decision.

Mr. Justice Somerville desires that we state, and at his suggestion the writer is pleased to note, that in writing what appears on pages 285 and 286 of the Gonzalez Case, he had in mind stating the rule obtaining where the objection to argument is sustained and no further corrective action is invoked as declared in the cases cited. He concedes that as applied to the case in hand, where objection was overruled, the case is misleading and should be limited.

In so far as the case of Birmingham Ry., Light Power Co. v. Gonzalez, 183 Ala. 286, 61 So. 80, Ann. Cas. 1916A, 543, and the later cases of Sharp v. State, 193 Ala. 28, 69 So. 122, and Lambert v. State,208 Ala. 44, 93 So. 708, which followed the Gonzalez Case on the point in question, are in conflict with this decision, the same are hereby modified.

All the Justices concur.

¹ Ante, p. 248.