The opinion
ON REHEARING.
On the original hearing the judgment was reversed on a single point, viz., the overruling of defendant’s objections to certain statements made by plaintiff’s counsel in his closing argument to the jury. That question was argued by both sides on its merits, and was so treated by this court. Our attention is now called to the recitals of the record with respect to the objections in question, and it is'insisted that no reversible error is shown.
The recitals referred to are as follows: “During the closing argument of counsel for plaintiff to the jury, the defendant objected, separately and severally, to the following statements of counsel in his argument to the jury: ‘Millions of nickels and dimes go into the coffers of the company and to the stockholders.’ ‘Why didn’t they put on their corps of men that hang around court?’ ‘Not knowing where she would get her meals, except through charity.’ ‘Somebody took the names of the witnesses.’ ‘We give them valuable franchises.’ The court overruled the objections separately and severally, to which action of the court in overruling the same the defendant duly excepted.”
The fifth of the quoted statements is supported by the testimony of defendant’s witness Crabtree; and we are unable to say that the second and third statements, as presented, were either improper as arguments, or capable of prejudicing the jury against defendant. While *285 the objections were made to these statements separately and severally, and were overruled separately and severally the exception was taken to all of these rulings collectively. A single exception to a series of rulings is unavailing, if any one of them is correct. — Alston v. State, 109 Ala. 54 , 20 South. 81 ; Smith v. State, 130 Ala. 95 , 30 South. 432 ; 8 Ency. Pl. & Prac. 167. We think the exception here shown is not sufficient to entitle appellant to a separate consideration of each ruling; and, some of them being free from error, the exception cannot be sustained.
Although the record shows that the objections were separately made to each statement during the closing argument, it does not show that they were called to the court’s attention at the time each statement was made. This may well have been done under this recital an hour or more after the objectionable statements were made by counsel, and doubtful recitals must be construed "most strongly against the exceptor. — Dickens v. State, 142 Ala. 51 , 39 South. 14 , 110 Am. St. Rep. 17 . To put the trial court in error, it should, in general, be made to appear that its ruling was appropriately invoked promptly upon the utterance of the supposedly improper remarks. — Birmingham Nat. Bank v. Bradley, 108 Ala. 208, 209 , 19 South. 791 ; B. R. L. & P. Co. v. Morris, 163 Ala. 190, 209 , 50 South. 198 ; 1 Brickwood’s Sackett, Instructions, § 244; 2 Ency. Pl. & Pr. p. 752; 1 Thompson on Trials, § 957; Whaley v. Vannatta, 77 Ark. 238 , 91 S. W. 191 , 7 Ann. Cas. 230, and note. In this respect the record is deficient.
It appears from the record that defendant merely objected to the quoted statements, without invoking any action of the court thereon. Had the objection been sustained, without any exclusion of them by the court, and without any instruction to the jury to disregard them, *286 these statements would have remained before the jury, and their possibly evil influence would have remained substantially uncorrected. The effect of our decisions is that a mere objection to already spoken words does not reach the evil aimed at, and that the court must be a]u pealed to to exclude them from the consideration of the jury, failing which there is nothing presented for review by an exception. — K. C., etc., R. R. Co. v. Webb, 97 Ala. 157, 163 , 11 South. 888 ; Cutcliff v. B. R. L. & P. Co., 148 Ala. 108 , 41 South. 873 ; B. R., L. & P. Co. v. Drennen, 175 Ala. 338 , 57 South. 876, 886 . This rule, it may be, does not logically apply to an objection to the continuation of an improper line of argument, as to which the error and' the injury might, perhaps, be imputed to its overruling alone. But this we do not decide. See Sullivan v. State, 66 Ala. 50 .
Where the objectionable statements are objectionable only because they are of matters of fact that are not in evidence, it is both just and reasonable to require the objection to so state to the court, and thus aid it to that extent in the decision of the question raised. There was no such suggestion here made to the court.
For the reasons above set forth, we feel impelled to hold that the bill of exceptions fails to show error on the part of the tidal court in the particular complained of, or, indeed, that its action was invoked in the premises.
There was, however, a motion for new trial, and the making of each of the five quoted statements by plaintiff’s counsel is separately assigned as a ground therefor. When .the question is thus presented, without appropriate objection and appeal to the trial court for corrective action at the time the remarks were made, the test for favorable action, and specially for revisory action, is, not whether the remarks have merely a natural *287 tendency to unfairly prejudice the other party’s case, but whether they are “grossly improper and highly pre judicial.” — L. & N. R. Co. v. Sullivan Timber Co., 126 Ala. 95 , 27 South. 760 . “The rule [requiring an appeal to the court for corrective action] is subject to the exception stated in the reported case that, if the improper remarks are of such a character that neither rebuke nor retraction can entirely destroy their sinister influence, a new trial should be promptly awarded, regardless of the want of a proper objection or exception.” — Whaley v. Yannatta, 7 Ann. Cas. 231, editorial note. Of this character are the cases of Florence, etc., Co. v. Field, 104 Ala. 471, 480 , 16-South. 538, 540, and B. R., L. & P. Co. v. Drennen, supra.
Upon a very full consideration of the two statements heretofore pointed out as improper, we cannot say, from the dim light afforded by the record, that they were, as made, either grossly improper or highly prejudicial. Each case of this character must be decided upon its own merits. There is no horizontal rule by which these qualities can be ascertained in all cases. Much will depend upon the issues, the parties, and the general atmosphere of the particular case. The final test is: Can the prejudicial tendency or effect of the improper statement be counteracted by an appropriate instruction from the trial judge, or is it probably beyond the reach of such remedial action?
We do not think the prejudice that might have resulted from the quoted statements was by any means incurable; and we are therefore not willing to reverse the action of the trial court in refusing to set aside the verdict for this cause, especially as the evidence was amply sufficient to justify a verdict for the plaintiff, and the amount awarded cannot he regarded as excessive, in view of the evidence of her injuries.
*288 The opinion of Stone, J., in Wolff v. Minnis, 74 Ala 386, 389, cited in the dissenting opinion of Justice Mayfield, is authority for the proposition that the prompt and emphatic disapproval of the improper statements of counsel by the court itself may suffice to “avert the probable mischief.” And, where it would in all probability do so, it is but just and proper, and, indeed, in accord with the general principles of trial practice, that it should be promptly invoked by the party complaining.
It is to be noted, also, that the grounds assigned for a new trial are merely that' these several remarks were made to the jury. This does not charge that any of these remarks affected the jury in the production of a verdict unfavorable to the defendant, or excessive in amount. These assignments are therefore not sufficient to raise those questions.
We do not wish to be misunderstood as to our attitude toward some of these remarks, and, in general, toward all such improprieties in argument. The remarks of plaintiff’s counsel in regard to the defendant’s revenues and franchises ought not to have been made to the jury; and, had the action of the court been promptly and properly invoked, its refusal to instruct the jury to disregard them would have worked a reversal of the judgment.
It results that the judgment of reversal must be set aside, and a judgment of affirmance entered.
Rehearing granted, and judgment affirmed.
Dowdell, C. J., and McClellan and Sayre, JJ., concur. Anderson, Mayfield, and de Graffenried, JJ., dissent.