This appeal is from a judgment in favor of appellee in the amount of $60,000.00 in
The complaint was in two counts. Count One alleged, in substance, that on April 7, 1962, the plaintiff was driving a truck owned by the defendant and was caused to become drowsy, gassed, and to go to sleep as a proximate consequence of the truck's defective condition in allowing exhaust fumes, motor fumes and gas fumes to escape into the cab of the truck. This count charged negligence on the part of the officers or agents of the defendant or a defect or insufficiency in the machinery due to the negligence of the defendant. The plaintiff alleged that he ran off the road while driving the truck on U.S. Highway 319 in Johnson County, Georgia, at a point approximately 11 miles north of Wrightsville, Georgia.
Count Two claimed negligence on the part of the defendant in failing to provide the plaintiff a reasonably safe place to work.
Defendant filed a "Motion to Dismiss," asking that the suit be dismissed by the court on the doctrine of forum non conveniens. This motion was subsequently amended, pointing out in more detail the reasons why the defendant felt the case should be dismissed. The presiding circuit judge entered an order on October 5, 1965, in which, after citing cases listed later in this opinion, he declined to enter upon a consideration of the issues presented by the amended motion to dismiss.
The main point in this appeal is raised by the first three assignments of error which charge that the court erred in overruling the motion to dismiss. That motion, based on the forum non conveniens doctrine, alleges that the involved accident took place in Georgia; that the plaintiff is a resident of Georgia; that the defendant is a Georgia corporation; all the witnesses reside in Georgia; that the action arises under the Federal Employers' Liability Act; that Birmingham and Alabama have no connection with the lawsuit; that the trial of the case would assist in congesting an already congested court docket; that Jefferson County is not a convenient forum in which to try the case and that the trial would be inconvenient, expensive, vexatious and oppressive to the defendant and its witnesses.
The same point presented here was raised in Ex parte State ex rel. Southern Railway Company, 254 Ala. 10, 47 So.2d 249. The court cited our statute, Tit. 7, § 97, Code 1940, which provides:
The court also said:
The appellant suggests that the case of State of Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3, provides a platform from which our decision in Ex parte State ex rel. Southern Railway Co., 254 Ala. 10, 47 So.2d 249, should be reexamined as to whether the doctrine of forum non conveniens is to be recognized. The Mayfield case merely allows the state courts to determine whether or not the doctrine will apply in F.E.L.A. cases. The Missouri Supreme Court, after remandment in Mayfield, supra, also held that forum non conveniens would not be available in Missouri in F.E.L.A cases. State of Missouri ex rel. Southern Railway Co. v. Mayfield, 362 Mo. 101, 240 S.W.2d 106.
We are not convinced that we should, by judicial edict, change a statute which has been the law for over sixty years and has weathered attempts to modify or repeal it in the legislature, including one proposed amendment to the Constitution (Act No. 205, Acts of Alabama 1951, Vol. 1, p. 467) which was defeated by the people in 1951.
Assignment 7 charges error in overruling appellant's objection to the following statement made by plaintiff's attorney in closing argument to the jury: "If a railroad man has got to try his case on the testimony of officials he is not going to win his case."
Some of plaintiff's witnesses testified that they had driven the truck which plaintiff was driving when he was injured, and each of them testified that fumes were present in the cab when they drove and two testified that the fumes made them drowsy. The man in charge of the diesel shop, the general foreman and a locomotive foreman testified they had driven the truck and had not noticed any fumes. These last three were evidently the "officials" at whom the statement was directed.
"MR. SADLER: I object to that.
In the matter of an attorney's argument, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its rulings. To justify a reversal, we must conclude that substantial prejudice has resulted. Occidental Life Ins. Co. of Cal. v. Nichols, 266 Ala. 521, 97 So.2d 879.
Here, counsel was arguing that the men who drove the truck regularly were better witnesses as to fumes in the cab than the supervisory personnel who could be biased because of their positions. We perceive no prejudicial error in the trial court's ruling under the authorities cited supra.
The only other argued assignment of error, No. 9, is that the motion for a new trial was improperly overruled because the verdict was excessive, which was ground 9 of the motion.
Considering the elements of damage in the case and remembering that the authority vested in the courts to disturb the verdict of the jury on the ground of excessive damages is one which should be exercised with great caution and discretion, we are constrained to hold that the ruling of the court to set aside the verdict should be upheld. We are unable to say that the amount of the verdict is the result of passion, prejudice, partiality or corruption on the part of the jury. We do not feel authorized to set the verdict aside especially in the face of the refusal of the trial judge to do so after he heard the evidence
No reversible error has been presented.
This case was originally assigned to another member of the court and was recently reassigned to the author of this opinion.
LIVINGSTON, C.J., and LAWSON, HARWOOD and MADDOX, JJ., concur.