Alabama Power Co. v. Goodwin

99 So. 158, 210 Ala. 657, 1923 Ala. LEXIS 109

Opinions

SOMERVILLE, J.

One of the chief questions presented by the assignments of error is upon the refusal of the trial judge to allow the defendant to show, — either as a defense to the wanton count, or for the pur* pose of enlightening the jury in the exercise of their discretion in the matter of awarding punitive damages under the wanton count,— that punitive damages were assessed against this defendant'in another suit by another passenger, based upon this same collision and this same alleged act of wanton negligence.

The theories upon which defendant offered this evidence are: (1) That it showed a status in the nature of a former conviction and punishment, and should therefore operate as a' bar to any additional punishment; and (2) that it was logically relevant for the consideration of the jury in determining whether punitive damages should be assessed in this case, and also in fixing the amount of such damages, if any were to be assessed.

In principle, these contentions have already been decided adversely to defendant. Irby v. Wilde, 155 Ala. 388, 46 South. 454, citing, as in accord, Phillips v. Kelly, 29 Ala. 628. In these cases — actions for assault and battery — the question was raised by the defendant’s offer to show, in mitigation of punitive damages, that he had been convicted and fined in a criminal prosecution for the same offense. In 1 Suth. on Damages (4th Ed.) 467, the rule is stated in accord with Irby v. Wilde, supra. So far as the underlying principle is concerned, it can make no difference whether the previous punishment offered in mitigation was by way of a fine in a criminal proceeding, or of punitive damages in a civil case.

The decisions on this question, it may be noted, are not in harmony, and seem to be nearly evenly divided in number and authority — a conflict which may be referable, in part at least, to divergent theories of the nature and purpose of punitive damages in civil cases. Both lines of cases are cited in 17 Corp. Jur. 982, notes 61 and 62.

The reason for the rule of exclusion is said to be that—

“The judgment for the criminal offense is for the wrong done to the public; the judgment for the tort, including the- punitive damages, is for the offense against the private sufferer.” Hoadley v. Watson, 45 Vt. 289, 12 Am. Rep. 197; 17 Corp. Jur. 982, col. 2.

Counsel call attention to the supposedly inconsistent doctrine laid down by this court in State v. Autery, 1 Stew. 399, followed in Caldwell v. State, 160 Ala. 96, 49 South. 679, that .in a criminal prosecution for assault and battery the defendant may show even the pendency of a civil suit for damages for the same offense. This criticism is plausible, but specious only.

It is true that our decisions have uniformly declared that injured persons have no absolute or vested right to punitive damages; that they are for punishment only, and not for compensation; and that such damages may be allowed or denied at the will of the Legislature. A. G. S. R. R. Co. v. Sellers, 93 Ala. 9, 15, 9 South. 375, 30 Am. St. Rep. 17; Coleman v. Pepper, 159 Ala. 310, 49 South. 310; W. U. T. Co. v. Westmoreland, 151 Ala. 319, 325, 44 South. 382; Meighan v. Bham. Term. Co., 165 Ala. 591, 51 South. 775. Nevertheless, when the law allows punitive damages to be assessed in civil cases in favor of the injured plaintiff, these damages lose their purely penal character and become an individual civil liability to the plaintiff, as an incident to the individual wrong done to him.

The vice of appellant’s contention, as it seems to us, lies in the assumption that a single act of wanton negligence, which simultaneously injures a number of individuals, is a single wrong. So far as punishment by a criminal prosecution is concerned, it would be but a single crime, and punishable but once. Hurst v. State, 86 Ala. 604, 6 South. 120, 11 Am. St. Rep. 79; Gunter v. State, 111 Ala. 23, 26, 20 South. 632, 56 Am. St. Rep. 17. But in its civil aspects the single act or omission forms as many distinct and unrelat ed wrongs as there are individuals injured by it. Southern Steel Co. v. Hopkins, 174 Ala. 465, 472, 473, 57 South. 11, 40 L. R. A. (N. S.) 464, Ann. Cas. 1914B, 692.

From the standpoint of purely logical relevancy, it may be conceded that the previous assessment of punitive damages, in other cases against the defendant for injuries resulting from the same wanton act, has some relation to the policy of an additional assessment of such damages for punishment in the case on trial.

But there are practical as well as technical objections which, we are constrained to think, commend the rule of exclusion as the better rule. It would be an unfortunate and inconvenient confusion of- issues to inject into one case the question of whether punitive damages have been actually assessed in another or other cases; and, even if the fact could be conveniently and certainly established, there would be no way to inform the jury as to how much of the damages assessed in other cases was punitive merely.

Upon these considerations and authorities we hold that the trial court did not err in the exclusion of the evidence offered by defendant in this behalf.

Plaintiff testified that she was observing the motorman just before the collision, and that—

"He was sitting with his face towards the right, the side with the door. He continued in this position until he saw the car, the freight ear [collision with which injured plaintiff! and other passengers].”

In his closing argument to the jury, plaintiff’s counsel, speaking of the motorman’s conduct said:

“The last time he was seen before the accident, he was looking to the side, and you know that that is a mighty good place to jump.”

Defendant’s objection to this statement was overruled, and it is strenuously insisted that this was reversible error.

The implication intended by the quoted statement undoubtedly was that the motorman, conscious of the fact that he was operating the car with a reckless disregard of the danger of collision, had in mind the conservation of his own safety, in case of such an accident, by seasonably jumping from the car through the door, on the side mentioned by the witness.

Counsel must not state as facts matters which are not in evidence — a rule often declared and applied by this and other courts. Cross v. State, 68 Ala. 476; Wolffe v. Minnis, 74 Ala. 386; B. R. L. & P. Co. v. Drennen, 175 Ala. 338, 57 South. 876, Ann. Cas. 1914C, 1037; B. R. L. & P. Co. v. Gonzalez, 183 Ala. 273, 283, 61 South. 80, Ann. Cas. 1916A, 543; and many other cases.

But where the statement objected to is a mere argument or inference from a fact which is in evidence, and is fairly pertinent .to the issue, courts are averse to interference “except in cases of flagrant and clearly •prejudicial abuse.” B. R. L. & P. Co. v. Gonzalez, supra. As observed in Cross v. State, 68 Ala. 476, 483:

“The presiding judge, as a rule, will best determine when discussion is legitimate, and when it degenerates into abuse and undue license. While he should not permit wanton abuse of adversary or witness, he would occupy questionable ground, if he arrested counsel in his attempt to educe inferential facts or intents from testimony in proof. Argument is but an aid to the jury, to enable that body to arrive at correct conclusions; and it would be dangerous to accord to the presiding judge the right and power to intervene, and declare authoritatively when an inference of counsel is or is not legitimately drawn. This is for the jury to determine, if there be any testimony on which to base it.”

See, also, Hobbs v. State, 74 Ala. 39, 41, to the same effect. Pertinent illustrations will be found in B. R. & E. Co. v. James, 121 Ala. 120, 25 South. 847; L. & N. R. R. Co. v. Perkins, 165 Ala. 471, 51 South. 870, 21 Ann. Cas. 1073; Green & Sons v. Lineville Drug Co., 167 Ala. 372, 52 South. 433.

We express our conclusion in the language of this court in the case of Motes v. Bates, 74 Ala. 374, 377:

“We see nothing in the discussion of counsel in this cause, which we can safely say is so obnoxious to criticism as to be violative of these principles [referring to Cross v. State, 68 Ala. 481], the enforcement of which must necessarily be regulated, very largely, by the sound discretion and good judgment of the nisi prius court. It is not contended that counsel has gone out of the record, so far as to state as facts matters not iv. evidence. The most that can be said is, that he has taken great latitude in deducing questionable inferences from facts already in evidence. We cannot perceive that he has, in doing this, infringed any rule of law, which will authorize a reversal of the cause.”

And it may be added in this case that, although the argument or inference in question, whichever it might be called, was pertinent to the issue of wanton negligence, it was too fanciful and remote to have had any real weight with the jury — especially in view of the fact that there is nothing in the evidence to even suggest that the motorman abandoned his post of duty when he discovered that collision was unavoidable. We do not think the jury could have been affected to any material extent by the statement in question.

Another assignment of error is based on the trial judge’s exclusion from the jury of this argument of defendant’s counsel, viz:

“Gentlemen of the jury, in determining whether any punitive damages should be assessed against this defendant or not, and the amount thereof, you should consider the fact that during all the time plaintiff was in the hospital in Gadsden and Birmingham a representative or agent of the defendant was in attendance upon her and sought, to heal her injuries and mitigate her suffering.”

The statement quoted should not be taken too literally as an’ affirmance that during every day of plaintiff’s stay at the hospitals referred to, defendant’s representative, a nurse or a physician, was in attendance upon her. We think that the assumption .of facts in the quoted statement of counsel is fairly and sufficiently supported by tbe ’ testimony. On the basis of those facts, we can see no sound and sufficient reason for the exclusion of the argument made to the jury that in the exercise of their discretion — whether as to the assessment of punitive damages, or the amount to be awarded — they should consider the acts of defendant for the mitigation of plaintiff’s suffering and for the healing of her injuries.

It is to he conceded, of course, that such considerations would not be competent for rebutting the implication of malice or wantonness as a factor in the motorman’s negligent conduct. But, with respect to tbe discretion which tbe jury is called upon to exercise in every case of wanton injury, such matters, when shown by the evidence, are, it clearly seems to us, legitimate subjects of comment by counsel for the defendant in appealing to tbe jury upon that aspect of tbe case.

As an instruction to tbe jury by tbe trial judge, such a statement would certainly be indefensible; but as an argument by counsel to influence the purely discretionary action of the jury, we think it was permissible and proper, and that its exclusion was erroneous and probably prejudicial.

Counsel for appellee has presented in brief an able and persuasive argument, supported by apt authorities, in vindication of bis own right to make any decent and pertinent argument he chose to make, upon facts which are in evidence, and we have ruled in favor of his contention. That argument and those authorities are as pertinent and as persuasive here as they were there, and must produce the same result. The trial judge must not pass upon the logical propriety of arguments addressed to the jury, but must leave their effect to the determination of the jury themselves. Any other course would be destructive of the rights and functions of free advocacy, as emphatically declared by this court in the cases cited above.

For the error noted, the -judgment will be reversed, and the cause remanded for another trial.

Reversed and remanded.

ANDERSON, O. X, and THOMAS and BOULDIN, JJ., concur.