Opinion
6 Div. 111.
October 21, 1920.
Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.
Percy, Benners Burr and Salem Ford, all of Birmingham, for appellant.
Where the verdict of the jury is so against the overwhelming weight of the evidence, it should be set aside, and the failure of the trial court to do so will work a reversal. 189 Ala. 662, 66 So. 627; 181 Ala. 565, 61 So. 914; 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998; 171 Ala. 294, 54 So. 626; 135 Ala. 154, 33 So. 8; 135 Ala. 375, 33 So. 32; 116 Ala. 142, 23 So. 53. In actions growing out of a breach of the contract, the measure of damages is as for a breach of the contract. Further the action is in case or assumpsit. 164 Ala. 494, 51 So. 150; 151 Ala. 319, 44 So. 382; 2 Ala. App. 652, 56 So. 830. Counsel discuss other assignments of error; but, in view of the opinion, it is not deemed necessary to set them out.
Stallings Drennen, of Birmingham, for appellee.
Humiliation and embarrassment are proper elements for damages in cases of this character. 3 Ala. App. 393, 57 So. 141; 61 So. 611; 11 Ala. App. 231, 65 So. 855; 2 Ala. App. 652, 56 So. 830; 195 Ala. 397, 70 So. 763. Counsel discuss other assignments of error, but without further citation of authority.
The minute entry, which is a part of the record proper, shows, notwithstanding an obvious ellipsis, that defendant's motion for a new trial was granted on the ground of excessiveness of the verdict, but upon the condition only that plaintiff failed for 20 days to enter a remittitur of $250 of the damages awarded.
The minute entry, however, is contradicted by the recitals of the bill of exceptions, which show that the motion "was overruled."
Where there is a conflict between the record proper and the bill of exceptions, the former controls as to matter which should appear by the record proper, and the bill of exceptions controls as to matter which should appear by the bill. C. of Ga. Ry. Co. v. Gross, 192 Ala. 354, 68 So. 291; Johnson v. Cox, 198 Ala. 563, 73 So. 922. Under the act of 1915 (Acts 1915, p. 722), changing the rule and practice as declared in Stokes v. Hinton, 197 Ala. 230, 72 So. 503, not only the motion for new trial, but also the decision granting or refusing it, must be included in the bill of exceptions. Hence, the bill of exceptions being the vehicle by which the decision on the motion must be presented to the appellate court, its recitals as to that decision must be accepted as conclusive on appeal. It follows, of course, that the minute entry cannot be considered as showing that the motion was granted conditionally, or that it remains undisposed of in the lower court; and the appeal from the original judgment cannot, therefore, be dismissed.
Our examination of the testimony persuades us that the issue of defendant's liability was properly submitted to the jury, and the affirmative instructions requested by defendant properly refused.
Defendant excepted to the following portion of the oral instructions to the jury:
"He [plaintiff] would be entitled to such sum as in your sound judgment and discretion you are reasonably satisfied from the evidence would compensate him for the injury sustained; that is to say, humiliation, embarrassment, annoyance, and inconvenience — things of that kind by reason of the water being cut off."
It has been held by this court that an instruction, in a case like this, that plaintiff could recover for "inconvenience" and "annoyance" caused by breach of the contract to supply him with water, was not improper. Birmingham Waterworks Co. v. Ferguson, 164 Ala. 494, 51 So. 150. Defendant's exception, not being restricted to that part of the instruction authorizing a recoverey for "humiliation" or "embarrassment," was manifestly bad, and cannot be sustained, whatever might have been its merit if so restricted.
While we think the verdict of the jury was against the weight of the evidence, we would not feel justified in setting aside the judgment as being so palpably wrong that it must have been the result of ignorance, passion, or prejudice.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.