Birmingham Railway, Light & Power Co. v. Sloan
74 So. 359
Ala.
1917
Check Treatment
SAYRE, J.

— (1) The argument of counsel to the jury was improper, but upon objection it was withdrawn. The withdrawal was not' altogether unequivocal, and seemed by indirection to reiterate plaintiff’s opinion that defendant’s wealth or earning capacity should be considered by the jury in estimating the compensation to be awarded to herself; but counsel for defendant, appellant, appeared to be satisfied with the court’s disposition of the matter; at least counsel invited no further action by the court. This court is unable to say that the argument was grossly improper or highly prejudicial, and in this state of the case the court is of opinion that a reversal should not be ordered. — Birmingham Railway v. Gonzalez, 183 Ala. 273, 61 South. 80, Ann. Cas. 1916A, 543.

Nor is the court able to say upon the record that the jury awarded damages for an injury not counted upon in the complaint or contrary to the court’s instruction. It seems likely that the jury were unduly limited by the court, and that plaintiff was entitled under the complaint to recover damages for any accel*270eration of her previous physical trouble that may have been caused by the wrong which is made the subject of complaint. The damages awarded are discomfortably large; but plaintiffs alleged injuries were of a character that left room for considerable diversity of opinion in respect to the proper compensation therefor, and the court, in view of plaintiffs testimony, feels its inability to interfere intelligently with the result.

(2) There was no error in the refusal of the charge requested by the defendant. The jury was not concluded by the expert testimony as to the physical consequences of plaintiff’s injury. Plaintiff also testified on that subject, and it may be supposed that she knew something whereof she spoke. By her testimony the jury were authorized to infer that her eyes had suffered some injury, and it does not support the proposition of error in the refusal of this charge to say that the great weight of the testimony was against the plaintiff. The question was still one for the jury.

The foregoing has been written in an effort to state the opinion of a majority of the court. Speaking now for himself, the writer has been inclined to discourage the recurrence of such questions by a close adherence to the course indicated, by the following excerpts from our adjudicated cases: “Nothing short of a prompt, emphatic disapproval of such line of argument, and that from the court itself, can avert the probable mischief.”— Wolffe v. Minnis, 74 Ala. 386. “The repressive powers of a court, to prevent such departures from legitimate argument of a cause before a jury, should be vigorously applied. No mere statement that it is out of order or improper can meet the exigencies of the case. Nothing short of such action on the part of the court and a clear satisfaction that the prejudice naturally excited by the use of such language had been removed from the minds of the jury ought ever to rescue a case from a new trial on motion of the party against whom rendered.” — Florence Co. v. Field, 104 Ala. 471, 16 South. 538.

While the principle of procedure is clear and undisputed, it is to be concluded that its proper application is often a matter of great delicacy and difficulty. Though at first of opinion that the judgment in this cause should be reversed, I have recognized that the question is close, and have yielded to the judgment of the majority.

Affirmed.

*271Anderson, C. J., and Somerville, Gardner, and Thomas, JJ., concur in the views expressed for the court. McClellan, J., concurs in the conclusion. Mayfield, J., dissents.