Opinion
6 Div. 190.
March 29, 1938.
Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.
Action for damages for personal injuries by Lou Schmitt, a minor suing by her next friend, Lena Schmitt, against Harry Routledge. From a judgment granting plaintiff's motion for a new trial, defendant appeals.
Affirmed.
London Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.
Where judgment is for plaintiff, questions raised by plaintiff on motion for a new trial pertaining to right of recovery will not be considered, because they are concluded by the judgment. Cocke v. Edwards, 215 Ala. 8, 108 So. 857; Jones v. Woodward Iron Co., 203 Ala. 66, 82 So. 26; Randle v. Birmingham Ry., L. P. Co., 169 Ala. 314, 53 So. 918; Tennessee Coal, I. R. Co. v. Dunlap, 24 Ala. App. 515, 137 So. 320. The granting of a new trial at request of plaintiff recovering judgment of one dollar can only be rested on inadequacy of sum awarded, and the verdict cannot be set aside as inadequate unless plainly shown to have been produced by passion, prejudice or other improper motive; and no improper conduct of the jury in determining damages being shown, the verdict is not to be set aside merely because the trial court feels a larger amount would have been awarded if left to the determination of the court. Ala. F. I. Co. v. Andrews, 215 Ala. 92, 109 So. 750; Mobile O. R. Co. v. Brassell, 188 Ala. 349, 66 So. 447; Tennessee Valley Bank v. Osborn, 17 Ala. App. 561, 86 So. 160.
Wilkinson Wilkinson and Ralph Tate, all of Birmingham, for appellee.
The decision of a trial court in granting a new trial will not be reversed unless the evidence plainly and palpably supports the verdict. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Cox v. B. R., L. P. Co., 163 Ala. 170, 50 So. 975. Where the evidence discloses that a person suffered substantial damages and the jury returns a verdict for nominal damages only, the verdict should be set aside and a new trial granted. Saks Sons v. Ivey, 26 Ala. App. 240, 157 So. 265; 4 Sedgwick, Damages, 9th Ed., 2751-2755; Alabama G. S. R. Co. v. Randle, 215 Ala. 535, 112 So. 112; Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447; Jackson v. Roddy, 224 Ala. 132, 139 So. 354, 355; Birmingham News Co. v. Lester, 222 Ala. 503, 133 So. 270; Cocke v. Edwards, 215 Ala. 8, 108 So. 857; Lowery v. Jones, 219 Ala. 201, 121 So. 704, 64 A.L.R. 553. The court erred in excluding the wanton count from the consideration of the jury, and therefore granted appellee's motion for a new trial embracing such ground. Daniel v. Motes, 228 Ala. 454, 153 So. 727.
This appeal is by the defendant in the court below from the judgment of the court setting aside, upon plaintiff's (appellee's) motion, the verdict of the jury (and the judgment rendered thereon) in her favor, in a suit by her against appellant, for damages alleged to have been suffered by appellee, in a collision between the car in which she was riding and one driven by appellant.
Upon such an appeal, it is true enough, as conceded by all concerned, the verdict of the jury having gone in appellee's favor, and thereby established her right to recover, she could not complain, upon her motion to set aside the verdict, the granting of which said motion is now under review by this appeal, of any other than errors bearing upon the measure, or amount, of damages awarded.
If nothing more was involved here than the amount of the damages awarded plaintiff by the verdict of the jury, we would be forced to say that said verdict was — while some other might probably without error have been returned — "plainly and palpably supported by the evidence." And that, hence, it was error — which we would here adjudge — for the court to set aside the said verdict. Cobb v. Malone Collins, 92 Ala. 630, 9 So. 738.
But something else was involved. It is too well known to require the citation of authority that the measure of damages for injuries inflicted through simple negligence is one thing; that for damages inflicted as the proximate result of wanton negligence is another — greater damages being allowed in the latter case.
So, if the count in plaintiff's (appellee's) complaint resting upon wantonness, as that term is understood in such matters, was improperly "charged out," as that term is likewise understood, by the court, this would be an error "bearing upon" the amount of damages awarded by the jury; and hence would justify the court's action in setting the jury's verdict aside, as well as requiring us to here affirm his action.
And that, we think, is the situation. We do not believe it would be altogether proper, in view of the retrial of the case that is to follow, for us to narrate or detail the testimony as it appears in the bill of exceptions.
But we have examined it closely; and compared it to that dealt with by our Supreme Court in the case of Daniel v. Motes, 228 Ala. 454, 153 So. 727.
So far as we can see, if the testimony in the Daniel v. Motes Case required, or permitted, the submission of the "wanton count" to the jury, that in the instant case did, likewise. Code 1923, § 7318. And hence, here, it was error for the court to exclude from the jury's consideration the question of wantonness, vel non, on the part of appellant, as was proposed in appellee's count 2 of her complaint.
Merely in passing, we remark that there is a question in our minds as to whether or not the verdict of the jury in the exact words and figures: "We the jury assess the plaintiff's damages at one dollar and 00/100 ($1.00)," was an "adequate" verdict upon which to base a judgment in plaintiff's (appellee's) favor, as against ground 6 of her motion to set same aside as being an "inadequate" verdict.
But we see no need to examine such question.
The judgment is affirmed.
Affirmed.