Johnston Bros. v. Brentley

PELHAM, J. It was the contention of appellee, who instituted the suit in the court below, seeking to recover wages of the appellant as an employee, that she had been employed by appellant as a milliner for the spring-season of 1909, and the principal controversy involved in this case is based on this contention and appellant’s denial of such employment; its contention being, on the other hand, that appellee was hired only by the month, and from month to month, as her services were needed and might prove satisfactory to appellant. The “spring season,” having reference to the millinery trade, according to the evidence introduced by appellee on the trial, embraced the months of March, April, May, and June, and her services were dispensed with by the appellant on the 1st day of May, 1909, whereupon the appellee instituted suit to recover for a breach of the alleged contract of employment, and for certain work and labor done incident to the employment. The evidence introduced on the trial showed that appellant had employed the appellee during years previous to 1909, the year in controversy, and the customs prevailing with reference to prior employments became pertinent matters of inquiry, and involved in the issues, as bearing on the period or extent of employment during the year in dispute. The contract of employment was entered into between appellant, acting through its president and general manager, George Johnston, and appellee in person, and upon the testimony of these two witnesses, whose evidence upon the the trial was in sharp conflict, necessarily depended the finding of the jury; for all the principal facts, relied upon, relating to the contract, of hire, by each of the parties were only known by and testified to by these two witnesses. There was a verdict and judgment for appellee, from which this appeal is prosecuted. — 287 — Of the 20 assignments of error, but one has any merit, ancl that is the assignment going to the objection and motion to exclude, made by appellant’s counsel to a part of the closing argument of opposing counsel on the: trial. It was improper for appellee’s counsel, in his: closing' argument to the jury, to read the pleas filed by defendant, setting up its different defenses, and call attention to the different dates of their filing, and to state in the argument, in connection with reading the pleas,that he (counsel) could see the president of the defendant in the law office of his counsel, telling what his- -defense was, and the stenographer of counsel for defendant taking down the statement, and at a subsequent time, as shown by the allegations in a plea subsequently filed, defendant’s president had stated a different defense to his counsel. ' The bill of exceptions purports to set out all the testimony in the case, and there is nothing in the evidence to support this argument of counsel that the defendant’s president had stated the different defenses to defendant’s counsel, and that they had been taken down by a stenographer and formed the basis of the allegations set up by the pleas first filed, and that at a subsequent time he had made a different statement of facts that were incorporated in pleas subsequently filed. And to read the pleas coupled with such an argument was calculated to unfairly prejudice the minds of the jury against the witness Johnston, who was the president and general manager of the appellant, and its principal witness, upon whose testimony appellant must rely to sustain its contention in the trial of the case. The argument charged contradictory statements in reference to the facts and implied bad faith upon the part of the defendant’s representative-and principal witness, which there was no evidence to sustain. The -design and tendency of the assertion evidently was to in — 288 — duce the jury to look unfavorably upon and discredit the testimony of this witness, and was naturally calculated to exert an influence on the minds of the jury and materially impair the weight of Johnston’s testimony. The argument clearly implied, if it did not directly state, that this witness, who was defendant’s president, had made different and contradictory statements of the facts which had been made the basis of the pleas framed by counsel, setting up the different defenses and filed on separate dates, when the evidence entirely fails to show that the witness Johnston had made any statement of the facts upon which the pleas were framed; non constat, they may have been prepared without any knowledge on the part of this witness of their contents, or even of the fact of preparing or framing them at all. Such a statement of substantive fact, unsupported by the evidence, exceeded the limitation of legitimate argument, and, as it had reference to a material inquiry involved in the trial of the case, should have been excluded by the trial judge on appellant’s motion. It was “an unauthorized allusion to a supposed outside fact, of which there was no proof, and of which no proof could lawfully be made. It could have no influence, except to prejudice the jury by withdrawing their minds and attention from the testimony before them to outside matters, of which there was and could be no testimony.”—Jackson v. Robinson, 93 Ala. 157, 9 South. 391. Counsel in argument to the jury, as reported in the case of Taft v. Fiske, 140 Mass. 250, 5 N. E. 621, 54 Am. Rep. 459, read an amended pleading filed subsequently to the original plea relied upon, and called attention to the fact that the matters set up by the amendment were not relied upon in the first instance, and referred to the amended pleas as a “put-up” defense, and the — 289 — court held the reading of pleas to the jury, coupled Avith such argument, so grossly erroneous as to AArarrant a. reversal of the case. It is well settled in this state that the trial' court should, upon request, restrain counsel Avithin the limits of legitimate argument, and that when the statement is of a fact pertinent to the issue, unsupported by the evidence, and -having a natural tendency to-influence the finding of the jury,.a failure to do so authorizes a reversal of the case.—Cross v. State, 68 Ala. 476; Wolffe v. Minnis, 74 Ala. 386; E. T., V. & G. Ry. Co. v. Bayliss, 75 Ala. 496; L. & N. R. R. Co. v. Orr, 91 Ala. 548, 8 South. 360; Jackson v. Robinson, 93 Ala. 157, 9 South. 391; Dollar v. State, 99 Ala. 236, 13 South. 575; Florence C. & 1. Co. v. Field, 104 Ala. 471, 16 South. 538; Dunmore v. State, 115 Ala. 69, 22 South. 541; Tannehill v. State, 159 Ala. 51, 48 South. 662. It seems to us that for plaintiff’s counsel to read to the jury the pleading prepared by opposing counsel, setting up the separate and different defenses, in a closing argument, where there is no opportunity for reply or explanation, and link with it an argument that is unsupported by the evidence, to the effect that the different statements contained in the pleas were made by the principal witness and officer of the defendant at different times to counsel Avho prepared them, and call attention to the separate dates of filing in substantiation of the argument, is exceeding the limitations of legitimate argument, and that it had a natural tendency to unfairly influence or prejudice the minds of the jury.; and the trial court was in error in refusing, when this Avas called to its attention, to correct counsel, exclude the argument, and give proper instructions to the jury. We cannot say that the defendant’s rights were not materially prejudiced, or that that fairness Avhich — 290 — should characterize the trial of a case was not destroyed by the improper remarks of counsel; and the unauthorized, naturally prejudicial statements of counsel in the closing argument that transcended the bounds of legitimate argument, must work a reversal of the case. The contention of appellee’s counsel that the objection made and exception reserved are not sufficiently definite to be available, as referable to the objectionable part of the argument, is not well taken. A fair and reasonable construction of the language contained in the bill of exceptions jmoperiy presents the proposition as above treated for review here. The exception reserved, as shown by the record, is to the court’s refusal to exclude “said argument and said statement” immediately following and having necessary reference to the argument and statement of counsel in connection with reading the pleas. The other assignments of error, as we have said, do not disclose any reversible error, and it is unnecessary to treat them in deetail; but, as the case must, be reversed for the error pointed out and discussed, as a guidance to the court upon another trial we discuss them generally. The contract sued upon was not required to be in writing to be actionable, and the proper construction of averments in the complaint would show .that it was a verbal contract that was declared upon. There was no error committed by the court in the various rulings on the evidence. Some, of the answers to the questions objected to> are shown to have resulted in no injury to the appellant; some of the objections are shown to have been made after the question had been answered, and came too late to put the court in error; nor as we have said, are any of the objections to the rulings of the trial court on the evidence well taken, — 291 — and, besides, they are not of a nature likely to occur upon another trial, and a discussion of them is unnecessary. The two written charges given at the request of the appellee assert correct propositions of law, as applicable to the facts adduced upon the trial, and there was no error committed by the court in giving them. If they Avere deemed misleading, it Avas incumbent upon the appellant to ask explanatory charges. Charge 2 requested by the appellant and refused by. the court Avas calculated to mislead, and is otherAvise incorrect, in that the plaintiff was not precluded from a recovery upon the hypothesis state. Charge 3 requsted by the appellant and refused was. fully covered by the charges set out in the record as given at the request of the appellant. Besides, it is one of those charges that the court may or may not, in its discretion, give AA'ithout being put in error. It singles out part of the testimony, and bases an argument on it, and is not á clear and succinct statement of a legal principle. Charges 4 and 5 requsted by the appellant were correctly refused for the same reasons as set out by us for sustaining the court’s ruling as to charge No. 3. The correct legal principles that are smothered up in the arguments on the evidence set out in these charges are covered in other charges given at the request of the appellant. Charges 6 and 7 requsted by the appellant and refused by the court are so Avorded that the court cannot be put in error for having refused them.;' but, as we have already discussed the objection reserved to the argument of counsel, and held it to be error for which the case must be reversed, it is unnecessary for us to refer further to the proposition contained in these charges. Reversed and remanded.