539 So.2d 218 (Ala. 1989), 86-1553, Green Oil Co. v. Hornsby

Docket Nº86-1553.
Citation539 So.2d 218
Opinion JudgeHOUSTON, Justice.
Party NameGREEN OIL COMPANY, a partnership v. Dean HORNSBY and Sheila Hornsby, d/b/a Hornsby's Grocery.
AttorneyEdwin L. Davis and Fred D. Gray, Tuskegee, for appellant. Steven F. Schmitt of Hornsby & Schmitt, Tallassee, for appellees.
Case DateJanuary 13, 1989
CourtSupreme Court of Alabama

Page 218

539 So.2d 218 (Ala. 1989)

GREEN OIL COMPANY, a partnership

v.

Dean HORNSBY and Sheila Hornsby, d/b/a Hornsby's Grocery.

86-1553.

Supreme Court of Alabama.

January 13, 1989

Page 219

Edwin L. Davis and Fred D. Gray, Tuskegee, for appellant.

Steven F. Schmitt of Hornsby & Schmitt, Tallassee, for appellees.

HOUSTON, Justice.

On April 17, 1986, Green Oil Company filed a two-count complaint against Dean Hornsby and Sheila Hornsby, d/b/a Hornsby's Grocery, for the recovery of certain personal property, including gasoline pumps and an underground tank, and on an open account for gasoline delivered and not paid for. The Hornsbys denied the debt on open account but admitted that the personal property belonged to Green Oil Company, and they filed a counterclaim alleging breach of contract and fraud. Green Oil Company filed a general denial to the counterclaim. The case was tried to a jury. The jury awarded Green Oil Company $2,000 and awarded the Hornsbys compensatory damages of $14,704.06 and punitive damages of $150,000. After Green Oil Company appealed to this Court, the case was remanded to the trial court for a hearing on the question of excessiveness of the jury verdict, pursuant to Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986). Following the Hammond hearing, the trial court ordered a new trial conditioned upon the Hornsbys' refusal to accept a remittitur of $125,000 in punitive damages. The Hornsbys accepted the trial court's remittitur of $125,000, reserving the right to question the trial court's decision on remittitur in the event Green Oil Company continued to prosecute the appeal pending in this Court.

We have searched the record and have been unable to find where Green Oil Company filed a motion for a directed verdict at any time during the trial of this case. Therefore, Green Oil Company's first issue, whether the trial court erred in refusing to grant its motion for a judgment notwithstanding the verdict, cannot be considered by this Court. Rule 50(b), Ala.R.Civ.P., provides in pertinent part:

"Whenever a motion for a directed verdict made at the close of all the evidence

Page 220

is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 30 days after entry of judgment, a party who has moved for a directed verdict may file a motion to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict...."

This Court has held that the filing of a motion for a directed verdict is a prerequisite to the filing of a motion for a judgment notwithstanding the verdict. Rush v. Eason Plumbing & Electrical Contractors, Inc., 361 So.2d 516 (Ala.1978); Sunshine Homes, Inc. v. Newton, 443 So.2d 921 (Ala.1983); Black v. Black, 469 So.2d 1288 (Ala.1985).

Green Oil Company argues that it was error for the trial court to refuse to grant a new trial because the verdict was against the great weight and preponderance of the evidence. The decision of a trial court refusing to grant a new trial on the ground that the verdict is contrary to the great weight and preponderance of the evidence will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, 740 (1891), overruled on other grounds, Jawad v. Granade, 497 So.2d 471 (Ala.1986). Suffice it to say, that we are not clearly convinced that it was wrong and unjust for the trial court not to grant a new trial on the basis that the verdict was against the great weight and preponderance of the evidence. The evidence of fraud on the part of Green Oil Company was sufficient to support the verdict.

Green Oil Company next argues that it was error for the trial court to refuse to set aside the award of punitive damages. We disagree.

Reviewing the evidence most favorably toward the Hornsbys, as our standard of review requires, we note the following: There was evidence of a representation to the Hornsbys by Green Oil Company, that Green Oil Company would charge the Hornsbys seven cents a gallon above Green Oil Company's cost of purchasing gasoline. There is evidence that Green Oil Company never intended to charge the Hornsbys no more than seven cents a gallon above Green Oil Company's cost for gasoline; therefore, the jury could have found that that statement was false. There is evidence that initially Green Oil Company did charge the Hornsbys approximately seven cents a gallon above its cost for gasoline; however, this changed.

On December 27, 1985, Green Oil Company charged the Hornsbys 13.4 cents per gallon above Green Oil Company's cost. This difference increased dramatically during 1986, and the following was the difference between the per gallon cost charged to the Hornsbys and the amount paid by Green Oil Company on the specified dates: January 9--16.4 cents; January 16--17.65 cents; January 23--18.6 cents; January 30--19.7 cents; February 6--20.25 cents; February 13--24.2 cents; February 20--27.5 cents; February 27--29.25 cents.

There was evidence of a representation made by Green Oil Company to the Hornsbys; there was evidence that the representation was false and that Green Oil Company knew it to be false; and there was evidence from which the jury could reasonably infer that the representation was made by Green Oil Company with the intent and purpose of deceiving the Hornsbys.

The Hornsbys were owners and operators of Hornsby's Grocery Store. They had never been in the grocery store or gasoline business before. When they started this business, they were dealing with an Amoco supplier from Camp Hill. They were satisfied with their relationship with this dealer, and they changed because of the representations made to them by partners of Green Oil Company. There is credible evidence that Mrs. Hornsby did not know how to ascertain the wholesale price of gasoline prior to the filing of this lawsuit

Page 221

by Green Oil Company, although there is evidence that she then learned how to ascertain this price and has done so frequently since this suit was filed. There is evidence to support a finding of every element of the cause of action for fraud in accordance with the trial court's thorough instructions to the jury. These instructions were not objected to by Green Oil Company; and after allowing all reasonable presumptions of its correctness, we find that the preponderance of the evidence against the jury verdict is not so decided as to clearly convince this Court that it is wrong and unjust.

As shown from the facts stated above, there was evidence to support an award of punitive damages.

The trial court in its Hammond order found the following:

"There is ample evidence to support the verdict for the Hornsbys for compensatory damages, and there is ample evidence to support a finding by the jury that [Green Oil Company] willfully and maliciously perpetrated a legal fraud upon the Hornsbys. The only question which arises from the evidence and surrounding circumstances in this case is whether the punitive damages award of $150,000.00 is excessive. We find that it is excessive, for the reasons that follow.

"The evidence...

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281 practice notes
  • Pennsylvania National Mutual Casualty Insurance Co. v. Edmonds, 030310 ALSDC, 09-0089-WS-B
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Alabama
    • March 3, 2010
    ...punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future." Green Oil Co. v. Hornsby, 539 So.2d 218, 222 (Ala. 1989). Under Alabama law, "[p]unitive damages must be supported by clear and convincing evidence that the defendant consciou......
  • 108 So.3d 1022 (Ala.Civ.App. 2012), 2110178, Engineered Cooling Services, Inc. v. Star Service, Inc. of Mobile
    • United States
    • Alabama Alabama Court of Civil Appeals
    • June 8, 2012
    ...67 So.3d 29, 41 (Ala.2010). " In reviewing a punitive-damages award, we apply the factors set forth in Green Oil [ Co. v. Hornsby, 539 So.2d 218, 223-24 (Ala.1989) ], within the framework of the ‘ guideposts' set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589......
  • 12 So.3d 32 (Ala. 2008), 1060615, Southeast Environmental Infrastructures, L.L.C. v. Rivers
    • United States
    • Alabama Supreme Court of Alabama
    • June 27, 2008
    ...in accordance with the decisions of this Court in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). The trial court scheduled those motions to be heard on December 1, 2006. The day before that hearing, however, the trial court inf......
  • 546 So.2d 371 (Ala. 1989), 87-1188, Central Alabama Elec. Co-op. v. Tapley
    • United States
    • Alabama Supreme Court of Alabama
    • May 12, 1989
    ...guidelines set forth by this Court in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986) (and clarified in Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989)). As with the "clear and convincing" issue, however, CAEC did not object to the trial court's failure to give such an in......
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268 cases
  • Pennsylvania National Mutual Casualty Insurance Co. v. Edmonds, 030310 ALSDC, 09-0089-WS-B
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Court of Southern District of Alabama
    • March 3, 2010
    ...punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future." Green Oil Co. v. Hornsby, 539 So.2d 218, 222 (Ala. 1989). Under Alabama law, "[p]unitive damages must be supported by clear and convincing evidence that the defendant consciou......
  • 108 So.3d 1022 (Ala.Civ.App. 2012), 2110178, Engineered Cooling Services, Inc. v. Star Service, Inc. of Mobile
    • United States
    • Alabama Alabama Court of Civil Appeals
    • June 8, 2012
    ...67 So.3d 29, 41 (Ala.2010). " In reviewing a punitive-damages award, we apply the factors set forth in Green Oil [ Co. v. Hornsby, 539 So.2d 218, 223-24 (Ala.1989) ], within the framework of the ‘ guideposts' set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589......
  • 12 So.3d 32 (Ala. 2008), 1060615, Southeast Environmental Infrastructures, L.L.C. v. Rivers
    • United States
    • Alabama Supreme Court of Alabama
    • June 27, 2008
    ...in accordance with the decisions of this Court in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). The trial court scheduled those motions to be heard on December 1, 2006. The day before that hearing, however, the trial court inf......
  • 546 So.2d 371 (Ala. 1989), 87-1188, Central Alabama Elec. Co-op. v. Tapley
    • United States
    • Alabama Supreme Court of Alabama
    • May 12, 1989
    ...guidelines set forth by this Court in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986) (and clarified in Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989)). As with the "clear and convincing" issue, however, CAEC did not object to the trial court's failure to give such an in......
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13 books & journal articles
  • Empowerment through restraint: reverse preemption or hybrid lawmaking?
    • United States
    • Case Western Reserve Law Review Vol. 59 Nbr. 4, June 2009
    • June 22, 2009
    ...See, e.g., Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21 (1991) (citing with approval state-law generated Green Oil Co. v. Hornsby, 539 So. 2d 218 (1989), factors in evaluating the fairness of a punitive verdict under the due process clause). On the other hand, some scholars have found ......
  • Post-Judgment Review of Punitive Damages, 0716 ALBJ, 77 The Alabama Lawyer 250 (2016)
    • United States
    • Alabama Bar Lawyer Nbr. 77-4, July 2016
    • July 1, 2016
    ...the same under both amendments. See Morgan, 997 F.2d at 1255. Under Alabama law, as set forth in Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), punitive damages "must not exceed an amount that will accomplish society's goals of punishment and deterrence&......
  • Punitive damages as societal damages.
    • United States
    • Yale Law Journal Vol. 113 Nbr. 2, November 2003
    • November 1, 2003
    ...may be recovered from a single defendant "if the cause of action arises from product liability"); Green Oil Co. v. Hornsby, 539 So. 2d 218, 224 (Ala. 1989) (explaining that after a punitive damages award has been rendered, the reviewing court considers whether there have been othe......
  • INCOME-DEPENDENT PUNITIVE DAMAGES.
    • United States
    • Washington University Law Review Vol. 95 Nbr. 4, March 2018
    • March 1, 2018
    ...life in wrongful death cases). (99.) [1964] AC 1129 (HL) (appeal taken from Eng.). (100.) Id. at 1227; see also Green Oil Co. v. Hornsby, 539 So. 2d 218, 223 (Ala. 1989) ("If the wrongful conduct was profitable to the defendant, the punitive damages should remove the profit and should ......
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