88 So. 908 | Ala. | 1921
Lead Opinion
Action by parent, the father, for damages for the wrongful killing *628
by the defendants of his minor child. Code, § 2485. The damages recoverable in such actions are punitive only. L. N. R. R. Co. v. Phillips,
The plaintiff's 20 months old child strayed, unattended, on the railway track of the company, and an engine and train of the company, with Engineer McKenzie (also a defendant) in charge, ran over the child, killing it. Counts 1 and 2 of the complaint are designed to attribute the child's death to McKenzie's negligence after the engineer discovered the peril of the child. If it were assumed that count 1 was defective in omitting to expressly aver that the child was in peril before the approaching train, no possible prejudice resulted to the defendants in overruling the demurrer to count 1, for the reason that count 2, proceeding on the same theory, was entirely sufficient in that respect. It is at least quite doubtful, however, whether count 1 is subject to the indicated criticism; the facts (not mere conclusions) averred being hardly susceptible of any other interpretation than that the child, only 20 months old and "alone," was in peril before the approaching train that killed it.
The insistences for error in refusing affirmative instructions against a recovery by plaintiff, as well as in overruling the motion for new trial on the ground that the evidence did not warrant a verdict for plaintiff or that the verdict was contrary to the evidence, cannot be supported on the record here. There was evidence and inferences from evidence going to establish every essential to a right in plaintiff to recover on the theory stated. There was evidence and inferences from evidence going to refute the case made for the plaintiff. It was the jury's province and function to decide the issues; to determine the truth from the conflicting evidence; to accord or to refuse credit to the testimony of the witnesses; and, in the state of the evidence disclosed by the record, it cannot be affirmed that the trial court erred in overruling the motion for new trial on the grounds stated just above. Cobb v. Malone,
A photograph, or photographs, of the locus in quo were offered in evidence. Subsequent to the matters to be mentioned, the photographer identified the photographs as those made by him. No photograph is shown by the record. Being a part of the evidence before the trial court, a full record here required their presence therein. Montevallo Mining Co. v. Underwood,
"I will ask you this: Does this point here, this flag here — is that the point where the blood was on the railroad track and cross-ties?"
Also:
"Is this — what flag is this?"
There was no error in overruling objections to these questions. They sought to elicit matter explanatory of the photograph and serviceable to refer the object (flag) to the place where the blood was on the track, not where the child was struck. The bill of exceptions recites:
"After the testimony was closed, A. R. Powell, of counsel for plaintiff, made the opening argument for the plaintiff. In discussing the law of the case to the court, he cited among other authorities the case of Louisville Nashville Railroad Company et al. v. Phillips,
"One of the attorneys for the defendants, at the close of the argument to the jury of the attorney for the plaintiff, in opening his argument for defendant, called the attention of the court to the foregoing statements made by the attorney for the plaintiff in the presence and hearing of the jury, stating that the facts in the foregoing case referred to by the attorney for the plaintiff should not be considered by the jury in arriving at a verdict, to which the court assented and stated that the jury would be so instructed."
The sixth and seventh grounds of the motion for new trial are predicated on the occurrence described in the quotation from the bill of exceptions. It was not error to overrule these grounds of the motion for new trial. The reading of the report of L. N. R. R. Co. v. Phillips, supra, was to the court, not to the jury. Being a sound decision in that *629 case, it was not improper or objectionable to read the report of the case to the court. No objection to the reading of it on that occasion was made for defendants, appellants; the record reciting that counsel for plaintiff first, before reading, called the attention of counsel for defendants to the book and page. If prejudice in the jury's minds had been anticipated or conceived as a result of the impending reading of the Phillips Case to the court in the hearing of the jury, objection should have been then made. Since counsel for plaintiff had the right to read the report of the Phillips Case to the court, unless the court in the exercise of a sound discretion forbade it, the real basis of the complaint in these grounds of the motion for new trial (sixth and seventh) is that the jury was not removed from the courtroom during this reading to the court. No such action by the court was invoked. Instead of invoking the court's discretionary power to remove the jury during the reading of this report of another case, counsel for defendants correctly asserted that the facts of the other case "should not be considered by the jury in arriving at a verdict, to which the court assented and stated that the jury would be so instructed." In the oral charge the court instructed the jury as follows:
"You are not to be guided by the verdict in any other case or what another jury may have done in other transactions, because each case stands upon its own footing, and the measure of culpability and responsibility of the defendants in different cases depends upon different states of fact, and therefore verdicts in other cases are not to be a guide to the jury in this case."
The cases of B. R., L. P. Co. v. Gonzalez,
The jury assessed the damages at $15,000. It is insisted that this amount is excessive. The damages in such cases being punitive only, the measure of the amount of a proper assessment is the degree of culpability causing the death. Code, § 2485. This court has reviewed the elements of fact and circumstance bearing upon this phase of the issue. As stated before, the evidence was in conflict on the substantial issue of negligence vel non on the part of the engineer. There was, however, evidence and inferences therefrom that invited the conclusion attained by the jury, viz. that the child's death was proximately caused by the engineer's negligence after the discovery of the child's peril. At what distance from the child the engineer, who testified he was looking ahead, discovered the child and realized the object was a child, was an inquiry of fact under the conflicting evidence; the defendants' witness Harris testifying that from the mail car window he saw the child "toddling down the track" about or just over a train length from the point of the curve which the evidence went to show was 1,000 feet from the place where the child was struck, though Harris fixed the distance between the train and the child at "about 100 yards distant." It was affirmed, without objection, by more than one witness, though denied by the engineer and others, that the engineer said in explanation of the event that he thought the child would get off the track when he blew at it. There was evidence, open to acceptance by the jury, that, with reasonable care and diligence, the train could have been stopped before striking the child. If, as the jury found, the engineer discovered the peril of the child in time to have averted its injury by the use of the requisite care, skill, and diligence to stop the train, and thereafter speculated in so grave a situation upon this 20 months old child's appreciation of its danger and its ability to get off the track, it cannot be affirmed that such speculation did not characterize the conduct or omission of the engineer with a degree of culpability that was well measured in the amount of this verdict.
No error appearing, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and MILLER, JJ., concur.
Addendum
In an earnest argument contesting the soundness of the feature of the opinion delivered on original submission, treating the grounds of the motion for new trial referable to the reading of the report of the Phillips Case (ante) to the court, in the presence of the jury, by plaintiff's counsel, and the charge of the court given in response to the complaint of counsel for defendants (appellants), it is insisted that error affects the conclusion of this court in that particular, and that, if allowed to stand, its precedential character will deflect from, if not thwart, the orderly administration of justice by opening the opportunity for overzealous counsel in future trials to introduce matter foreign to the issues on trial. The court is now, as it was on original consideration, aware of the importance of the question presented; but its sound decision must result from a consideration of all, not some, of the factors that have relation to it. The right of parties to causes, civil or criminal, to be heard through themselves or counsel is fundamental. Const. 1901, §§ 6, 10; Peagler v. State,
As appears from the recitals of the bill of exceptions quoted in the original opinion, ante, the subject of appellants' complaint arose out of the argument of plaintiff's (appellee's) counsel to the court, not to the jury; the jury, however, being present during this argument to the court. There was no objection by counsel for defendants (appellants) to the reading of the Phillips Case, or to the reading of any part of the report of that case. There was no request that the jury retire during the reading of the case, of the intention to read the report of which case notice in advance of the reading was given. As the bill of exceptions recites, the only dissatisfaction manifested was that expressed by defendants' counsel during argument following that of plaintiff's counsel who read the Phillips Case, including the statement of the facts, and commented thereon in his argument to the court in the presence of the jury; and this criticism took the form of the correct assertion addressed to the court that the facts in the Phillips Case should not be considered by the jury, and the court acted in consonance with the assertion when it instructed the jury as quoted in the original opinion ante.
In Western Union Telegraph Co. v. Benson,
"While it may not be permissible for counsel to read the facts from the report of another case to the jury as a part of his argument to them (Williams' Case,
The doctrine of the Benson Case is undoubtedly sound; and it was recently reiterated in the Gustin Case, supra, where counsel omitted, after opportunity afforded, to request the retirement of the jury during the reading of a decision of this court.
Much reliance is placed upon Birmingham National Bank v. Bradley,
"* * * The interference of the court should have been invoked at the time the unauthorized statements were being made by counsel."
The reversal was not put upon that ground. It appears from the transcript that this observation of the court was a recognition of the fact that objection to the argument there indicated was not taken at the time counsel made the unauthorized argument, just as here there was no objection interposed to the reading of the report of the Phillips Case. Earlier in the opinion in the Bradley Case the court well said:
"Wrong and injurious impressions intentionally made upon the minds of the jurors, by asking improper questions, or making an improper argument to the court in their presence, for the purpose of getting before them facts or statements, not admissible, and which have been ruled out, calculated to prejudice their judgment, demands the prompt interference of the court, and a verdict should not be allowed to stand obtained by such a practice. We will further add, that it was within the discretion of the court to have the jury retire from the courtroom, so as not to hear the discussion in regard to the admissibility of evidence, and counsel have no right to insist that the jury hear his questions, and that the court rule on the objection in their presence."
It will be noted, particularly when the transcript is read in connection with the matter *631 quoted, that this court there predicated the observation upon the fact that counsel improperly persisted in making statements to the court in the presence of the jury, touching matter wholly irrelevant, that had "been ruled out" by the court. Neither the observations of the court in the Bradley Case nor the decision there pronounced are authority upon which to rest a reversal on the point now under reconsideration; and it is equally clear that the quoted doctrine of the Benson Case, supra, more recently announced, is not inconsistent with the observations made in the Bradley Case.
It is insisted that the statement by plaintiff's counsel of the amount of the verdict in the Phillips Case, its facts and the identity of the corporate defendant in both, interjected a matter that could not be eradicated from the jury's mind, and that the verdict was so tainted thereby that it should have been set aside on the motion for new trial. It is manifest that the idea did not at all prevail at the time of the trial, nor was it then even suggested. It is manifest from the quoted recitals of the bill of exceptions that the reading of the report of and comment upon the facts of the Phillips Case to the court, in the presence of the jury, was regarded as a matter susceptible of complete, satisfactory correction through the court's instruction of the jury, which was the course taken by the court. The court evidently entertained this view when the motion for new trial was considered and overruled by it. The coincidence that the verdict rendered was for the same sum awarded in the Phillips Case cannot be accorded the effect of impeaching or reflecting upon the jury's ascertainment of the damages to be assessed under evidence materially different from that shown in the report of the Phillips Case and in circumstances that, if credited by the jury, justified the measure of culpability fixed by the amount awarded.
The application for rehearing is overruled.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and MILLER, JJ., concur.