Opinion
Civ. 606.
January 21, 1976.
Appeal from the Circuit Court, DeKalb County, Randall L. Cole, J.
Loma B. Beaty, Robert G. Wilson, Fort Payne, for appellant.
Where liability is established, fault having been found, and the evidence for actual compensatory damages being undisputed, any amount awarded less than the undisputed concrete items proven is inadequate — not in fact, but in law. McDonald v. Amason, 39 Ala. App. 492, 104 So.2d 716. Where the award of damages is inadequate as a matter of law, there is no presumption attending the judgment of the trial court in overruling the Motion for a New Trial based upon the inadequacy of the damages. Ala. Code of 1940, Title 7, Section 764.
Robert B. French, Jr., Fort Payne, for appellee.
In 22 Am.Jur.2d, Section 398, it is stated that the matter of setting aside the verdict in cases usually rests primarily in the discretion of the trial court and its actions in granting or refusing to grant a new trial on the ground of inadequacy of damages will not be disturbed on appeal, unless an abuse of discretion is shown. Montgomery Light Tractor Co. v. King, 187 Ala. 619, 65 So. 995. It was held in Deramus v. Alabama Power Company, 48 Ala. App. 430, 265 So.2d 609, that the refusal of trial court to grant a motion for new trial on the grounds of inadequacy of damages is largely discretionary and brings to the reviewing court a strong presumption of correctness. Many Alabama cases have held that there is a presumption that the trial court is correct when denying a motion for new trial. Parker v. McGaha, 291 Ala. 339, 280 So.2d 769; United Mine Workers of America v. Sams, 287 Ala. 312, 251 So.2d 613; Byrd v. Fowler, 50 Ala. App. 596, 281 So.2d 647; Walker v. Young, 39 Ala. App. 601, 105 So.2d 875. In Jones v. Bynum, 189 Ala. 677, 66 So. 636, it was held that in civil actions for assault and battery that the abusive or offensive language of the plaintiff at, or about, the time of the assault may mitigate the fault of the Defendant, but it cannot justify it so as to prevent some recovery of damages, albeit only nominal.
Plaintiff Lipham appeals from the alleged inadequacy of a judgment awarding him nominal damages against defendant McElroy.
Lipham filed suit against McElroy for $75,000 in damages suffered as a result of an altercation in which McElroy shot Lipham with a .22 caliber pistol.
Trial was held on December 10-12, 1974. At the trial much evidence was heard as to the circumstances surrounding the incident and the character of the parties. Virtually all of this evidence was in dispute.
However, a portion of the evidence was undisputed: Lipham introduced evidence of hospital expenses of $1,606.54 and doctors' bills of $750. Defendant stipulated that these charges were reasonable. Lipham also testified without contradiction as to pain suffered from the shooting and to a job opportunity he lost due to his injury.
At the conclusion of the hearing the trial judge gave a charge which stated in part:
"If you are reasonably satisfied from the evidence that the plaintiff is entitled to recover you should award a sum which would reasonably and fairly compensate him for such pain and suffering and mental anguish already suffered by him or for any pain, suffering or mental anguish which you are reasonably satisfied from the evidence he is reasonably certain to suffer in the future. Also, in regard to compensatory damages, the measure of damages for medical expenses is all reasonably (sic) expenses necessarily incurred for doctor and medical bills which the plaintiff has paid or become obligated for. Reasonableness of such medical and doctor bills is ordinarily an issue. In this case the parties have agreed that the medical bills and doctor bills which have been presented are reasonable."
The jury returned the following verdict:
"We, the jury, find the issues in favor of the plaintiff and assess his damages at $1.00. Frank Duke, Foreman."
Plaintiff moved for new trial on the grounds that the award was inadequate. This motion was denied.
This appeal assigns as error the denial of the motion for new trial and the refusal to give plaintiff's requested charges 2, 7, 8 and 9. Although the refusal of the charges was properly excepted to in compliance with Rule 51, ARCP, the assignments of error based thereon present no grounds for review. The refused charges relate solely to the issue of liability. Because the jury found this issue in favor of appellant, the error, if any, in refusing the charges would be harmless, Rule 61, ARCP, Fike v. Stratton, 174 Ala. 541, 56 So. 929. The only assignments to be considered, therefore, relate to the motion for new trial.
The fact that the jury found the issues in plaintiff's favor, that plaintiff had proven reasonable medical expenses in the total amount of $2,356.54, plus pain and suffering, and that the jury awarded only nominal damages brings the instant case squarely within the holding rendered in Conner v. Hamlin, 33 Ala. App. 54, at 56, 29 So.2d 570, at 572:
. . . Having found that appellee's conduct [assault and battery] was illegal, the jury's action in failing to assess properly established damages proximately resulting therefrom can be viewed in no other light than being capricious.
"Viewed in the light of the verdict the conclusion is inevitable that the damages awarded by the jury did not cover the substantial medical expenses incurred by the appellant. It is equally clear that the damages in nowise covered any award for physical and mental pain and suffering. To affirm this verdict and judgment awarding only nominal damages for substantial damage suffered by appellant according to the great preponderance of the evidence would, we are convinced, be wrong and unjust. [Citations omitted.]"
There was error in the trial court's denial of motion for new trial.
Reversed and remanded.
WRIGHT, P. J., and HOLMES, J., concur.