Summary
upholding a general verdict for an amount obviously in excess of nominal damages where the jury heard evidence tending to show "some actual damage" to the plaintiff in the sale of a new automobile represented as one of a model still in production, although in fact production had been discontinued
Summary of this case from Life Insurance Co. of Georgia v. SmithOpinion
6 Div. 524.
March 22, 1934. Rehearing Denied May 31, 1934.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Vassar L. Allen, of Birmingham, for appellant.
Unless specific special damages are set out in the complaint, no damages can be claimed except those that are the direct, natural, and necessary result of the alleged breach of contract or of duty. Moses v. Autuono, 56 Fla. 499, 47 So. 925, 20 L.R.A. (N.S.) 350; First Nat. Bank v. Stewart, 204 Ala. 199, 85 So. 529, 13 A.L.R. 302; Dowdall v. King, 97 Ala. 635, 12 So. 405; Hooper v. Armstrong, 69 Ala. 343. Plaintiff called defendant as a witness, and his testimony was strongly contradictory of that of plaintiff. Charge 7 was asked on the accepted theory that, having called a witness, a party could not take a position of profiting by the favorable and escaping the burden of unfavorable features of his testimony. 28 R. C. L. 646.
Wm. B. McCollough, of Birmingham, for appellee.
Punitive damages are recoverable in an action for deceit. The amount awarded may be regarded as actual or exemplary damages. Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; L. N. R. Co. v. Hall, 87 Ala. 708, 6 So. 277, 4 L.R.A. 710, 13 Am. St. Rep. 84; A. G. S. R. Co. v. Frazier, 93 Ala. 45, 9 So. 303, 30 Am. St. Rep. 28; A. G. S. R. Co. v. Burgess, 119 Ala. 555, 25 So. 251, 72 Am. St. Rep. 943; B. R. E. Co. v. Baird, 130 Ala. 334, 30 So. 456, 54 L.R.A. 752, 89 Am. St. Rep. 43; Pullman Co. v. Lutz, 154 Ala. 517, 45 So. 675, 14 L.R.A. (N.S.) 907, 129 Am. St. Rep. 67; 8 R. C. L. 581; 12 R. C. L. 453. Charge 7 is not a correct proposition of law. 28 R. C. L. 642, 643; Phœnix Assur. Co. v. McAuthor, 116 Ala. 659, 22 So. 903, 67 Am. St. Rep. 154; Childers v. Holmes, 207 Ala. 382, 92 So. 615; Western Union Tel. Co. v. Northcutt, 158 Ala. 539, 48 So. 553, 132 Am. St. Rep. 38.
Action for deceit in the sale of an automobile.
The plaintiff stated his case originally in three counts, but count 2 was eliminated before the case was given to the jury or was charged out by the court.
To these counts the defendant filed demurrers, separately and severally, but, before the demurrers were passed upon, the plaintiff amended counts 1 and 3, and defendant refiled his demurrers thereto.
We deem it only necessary to say, with reference to counts 1 and 3, that they are substantially in the form prescribed by the Code, and were not subject to any ground of defendant's demurrer here argued. In fact, we scarcely see just how they could have been more specific, either in their averment of facts, or in the statement or averment of damages sustained by plaintiff. No special damages are claimed as supposed by appellant.
This being an action for deceit, if the plaintiff suffered no actual damage from the fraud, there would be no cause of action, and the plaintiff could not recover even nominal damages. Otherwise stated, "Since injury is not merely a consequence flowing from the fraud, but is an essential element of the wrong, there can be no recovery of nominal damages where the plaintiff fails to show injury sufficient to sustain an action of fraud." 27 Corpus Juris, § 227.
From the foregoing, as a necessary corollary, it would follow that if the plaintiff did sustain actual damages, as the result of the fraud, though the exact amount of the same in dollars and cents may not be shown, the plaintiff would at least be entitled to recover nominal damages.
The evidence on the issue of fraud, vel non, was in direct and sharp conflict. There was also evidence tending to show that the plaintiff suffered some actual damage from the wrong. The jury determined the issue, as to deceit in the sale of the automobile, in favor of the plaintiff, and there being some evidence also tending to show that plaintiff suffered some actual damage, such finding authorized the jury, under the evidence, in awarding the plaintiff at least nominal damages.
The plaintiff being entitled to nominal damages, the question of whether the jury was warranted in awarding plaintiff more than that amount could only be raised by proper motion for new trial. We have no such motion before us. Hence the question is not presented here for review.
Charge 7, requested by the defendant, was not only a mere argument, but, as a proposition of law, was unsound, and was refused without error.
While one who offers a witness upon the trial of a cause ordinarily vouches for his credibility, and will not be allowed to impeach him thereafter, yet he is not precluded thereby from proving facts contrary to the testimony of such witness. A party calling a witness is not absolutely bound by his statements, and while he may not impeach his witness, he may show the statements made by him are not true in fact, although this may incidentally discredit the witness. 28 R. C. L. p. 643; Phoenix Assur. Co. v. McAuthor, 116 Ala. 659, 22 So. 903, 67 Am. St. Rep. 154; Jones v. State, 115 Ala. 67, 22 So. 566; 3 Brick. Dig. 828, §§ 98-100; 29 Am. Eng. Ency. of Law, 812.
The foregoing disposes of all questions presented on this appeal, and finding no errors, the judgment of the circuit court must be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.