Opinion
7 Div. 966.
November 27, 1919. Rehearing Denied December 24, 1919.
Appeal from Circuit Court, St. Clair County; J. E. Blackwood, Judge.
W. A. Denson, of Birmingham, for appellant.
Counsel discusses the pleading and proof, together with the action of the court thereon, with citations of authority, but in view of the opinion of the court it is not deemed necessary to here set it out. On the question of the argument employed by counsel he cites the following cases to show that it was legitimate: 193 Ala. 188, 69 So. 1; 135 Ala. 613, 33 So. 683; 2 R.C.L. 421; 142 Ala. 40, 39 So. 341; 59 Ala. 279; 97 Ala. 63, 15 So. 242; 66 Ala. 51; 136 Ala. 135, 33 So. 826; 144 Ala. 134, 39 So. 251; 200 Ala. 308, 76 So. 78; 38 Cyc. 1471; 192 Ala. 526, 68 So. 330; 193 Ala. 28, 69 So. 122.
Percy, Benners Burr, of Birmingham, for appellee.
The court properly granted the motion because of the improper argument of the counsel. 74 Fla. 63, 76 So. 530, L.R.A. 1918B, 83; 74 Ala. 386; 256 Pa. 86, 100 A. 529; 11 Ala. App. 644, 66 So. 944; 184 Ala. 496, 63 So. 470; 77 Ala. 446; 104 Ala. 471, 16 So. 538; 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; 190 Ala. 27, 67 So. 583; 165 Ala. 16, 50 So. 1027.
Confining our review to that particular portion of the argument of plaintiff's counsel which is above reported, we feel no hesitation in saying that it was highly improper, and should have been rebuked and excluded in the first instance, and that the action of the trial court in granting a new trial on that account ought to be, and must be, upheld.
A fair analysis of the language in question shows a statement, as of fact, that dividends were earned by the defendant corporation; that its directors — and at least some of its stockholders — were nonresidents of Alabama, and that they held meetings in Washington for the division of their corporate dividends. There was no evidence before the jury of such matters, and such evidence could not have been properly received if offered.
The implications of the language, and the animus of the appeal thus presented to the jury are unmistakable, and need no judicial exposition. Suffice it to say that similar statements and arguments have been several times condemned by this court, as they should always be. E. T., V. G. R. R. Co. v, Carloss, 77 Ala. 443, 447; Florence, etc., Co. v. Field, 104 Ala. 480, 16 So. 538; B. R., L. P. Co. v. Gonzales, 183 Ala. 273, 281-283, 61 So. 80, Ann. Cas. 1916A, 543.
We need not consider other questions presented by the record.
The judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.