Mallory S. S. Co. v. Druhan

78 So. 636 | Ala. Ct. App. | 1918

On appeal in cases granting a new trial, the appellate court will not reverse the order, unless the evidence plainly and palpably supports the verdict. This has been the rule in this state since the case of Cobb v. Malone et al., 92 Ala. 630,9 So. 738. We have examined carefully the evidence as disclosed by the bill of exceptions, and we cannot say that the action of the trial court is such as would warrant us in reversing its finding. For the reason that this case must be tried again, we refrain from a discussion of the evidence here presented.

In addition to the above, the court might well have set aside the verdict of the jury and granted a new trial on account of the remark made to the jury by the defendant's counsel. This remark was not warranted by any phase of the testimony, and could have had but one tendency; i. e., to have prejudiced the minds of the jury against the plaintiff's case and in favor of the defendant. Counsel should not be permitted to obtain verdicts by other than fair presentations of their causes upon the facts and legitimate argument based upon them, and when verdicts are otherwise obtained, they should be promptly set aside by the trial courts. This question has been so thoroughly and fully discussed in the case of B. R. L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037, that we deem it unnecessary to comment further.

We find no error in the record, and the judgment is affirmed.

Affirmed.