
    DAYLIGHT GROCERY COMPANY, a corporation, v. LEO JACKSON
    28 So. (2nd) 871
    June Term, 1946
    October 11, 1946
    En Banc
    Rehearing granted November 29, 1946
    On rehearing granted January 24, 1947
    
      Osborne, Copp & Markham and J. Henson Markham, for appellant.
    
      Evan Evans, for appellee.
   PER CURIAM:

Affirmed.

ON REHEARING

FABISINSKI, Associate Justice:

Rehearing was granted in order that the Court might reconsider the question as to whether certain remarks of the counsel for plaintiff, injecting race prejudice, were sufficiently inflammatory and prejudicial in their nature as to require a reversal.

The appellant, defendant below, is a corporation composed of white persons, and all of its officers are concededly of the white race. The action is based on an assault made by a negro employee on appellee, a white man. All of the witnesses in the case were of the white race.

No objection was made to the language now complained of, at the trial of the cause. The question was first raised in the motion for new trial.

The Court is unwilling to extend the principles enunciated in Akins v. State, 86 Fla. 564, 98 So. 609, beyond the limits there indicated. So far as we are advised, in no case in any jurisdiction has any court gone so far as to hold that appeals to prejudice by reason of race or nationality require a reversal of the judgment unless the person against whom such remarks are directed is a party to the proceedings or, in criminal prosecutions, a witness in the case. This is, we think, certainly true where no objection was interposed at the trial.

The appellant corporation was in no way connected with the assault except as it is made liable under the law for the acts of its employees, and was itself a victim of circumstances. We cannot believe that any jury of intelligent men would vent its prejudice against the negro race, if any existed, on an aggregation of white persons who were only vicariously affected by the act of a negro employee.

The decision to affirm is adhered to.

Affirmed.

THOMAS, C. J., CHAPMAN and ADAMS, JJ., concur.

TERRELL, BUFORD and BARNS, . JJ., dissent.  