194 So. 663


6 Div. 640.Supreme Court of Alabama.
March 14, 1940.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Lange, Simpson, Brantley Robinson and W. P. Rutledge, all of Birmingham, for appellant.

Where plaintiff’s counsel makes a statement of fact not supported by evidence for the purpose of prejudicing the jury against defendant, it is error for the court not to grant a new trial. East Tennessee, Va. Ga. R. Co. v. Carloss, 77 Ala. 443; Metropolitan L. I. Co. v. Carter, 212 Ala. 212,102 So. 130; Tuscaloosa v. Hill, 194 Ala. 559, 69 So. 598; Crotwell v. Cowan, 236 Ala. 578, 184 So. 195; Moore v. Holroyd, 219 Ala. 392,122 So. 349; Southern R. Co. v. McCants, 231 Ala. 22,163 So. 365; Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225,128 So. 389; Porter Coal Co. v. Davis, 231 Ala. 359,165 So. 93.

W. B. McCollough, of Birmingham, for appellee.

Trial court will not be reversed for overruling motion for new trial on ground of improper argument unless argument was so grossly improper and highly prejudicial that neither retraction nor rebuke would have destroyed its influence. Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277; Greenwood v. Bailey,28 Ala. App. 362, 184 So. 285; Louis Pizitz D. G. Co. v. Yeldell,213 Ala. 222, 104 So. 526; Birmingham Am. Co. v. Norris,216 Ala. 138, 112 So. 633, 53 A.L.R. 840; Alabama L. S. Co. v. Adams, 218 Ala. 647, 119 So. 853; Alabama C. P. Co. v. Mathews,220 Ala. 549, 126 So. 869.

BROWN, Justice.

Action on the case by the mother to recover damages resulting to her from an injury to her minor son, in the loss of service, and expense in time and money in the treatment of his injuries.Page 241

The injuries resulted from a collision between the defendant’s truck driven by its agent, Smith, and a motorcycle in the possession of the plaintiff’s son, Willie Lee Hardy, at the intersection of Eighteenth Street ? a part of the Montgomery Highway out of Birmingham ? and Twenty-Ninth Avenue in Homewood. The case went to the jury on count A ascribing the injury to the negligence of the defendant’s servant or agent, and the defendant’s pleas, the general issue and contributory negligence, pleaded in short by consent. The trial resulted in a verdict for plaintiff for $633, followed by judgment, after motion for new trial overruled.

The evidence, to say the least, was in sharp conflict on both the issue of negligence and contributory negligence, the evidence preponderating in defendant’s favor. The closing argument of plaintiff’s counsel set out in full in the bill of exceptions is interlaced with statements of facts, not supported by the evidence, which tended to overbalance the preponderancy in the evidence, and some of the statements were not only improper, but were ineradicable.

We are, therefore, of opinion that the motion for new trial should have been granted, and that the circuit court erred in its denial. Crotwell et al. v. Cowan, et al., 236 Ala. 578,184 So. 195; American Ry. Express Co. et al. v. Reid, 216 Ala. 479,113 So. 507; Moore v. Holroyd, 219 Ala. 392, 122 So. 349.

The judgment of the circuit court is therefore reversed; the motion for new trial granted; and the cause is restored to the trial docket in the circuit court for further proceeding thereon.

Reversed, rendered and remanded.

ANDERSON, C. J., and THOMAS, and KNIGHT, JJ., concur.