Airheart v. Green, 8 Div. 904

• Court: Alabama Supreme Court
• Writing for the Court: SIMPSON
• Citation: 267 Ala. 689,104 So.2d 687
• Docket Number: 8 Div. 904
• Decision Date: 29 May 1958
• Parties: I. Eugene AIRHEART, Sr., v. Ernestine B. GREEN, as Adm'x, etc.

Page 687

104 So.2d 687 267 Ala. 689 I. Eugene AIRHEART, Sr.,
v.
Ernestine B. GREEN, as Adm'x, etc. 8 Div. 904. Supreme Court of Alabama. May 29, 1958.
Rehearing Denied Aug. 28, 1958.

[267 Ala. 690]

Page 688

Scott, Dawson & McGinty, Scottsboro, for appellant.

W. Loy Campbell and H. T. Foster, Scottsboro, and Julian Harris and Norman W. Harris, Decatur, for appellee.

SIMPSON, Justice.

This is an action under the Homicide Statute (Tit. 7, § 123, Ala.Code 1940) where plaintiff recovered a judgment against defendant for the death of her intestate resulting from an automobile collision between an automobile being operated by the defendant and an automobile being operated by plaintiff's intestate.

The case went to the jury on Counts 1 and 2, charging simple negligence and

Page 689

wantonness. A verdict for the plaintiff for $135,000 was returned by the jury and the trial court entered judgment accordingly. Upon the filing by the plaintiff of a remittitur of all damages in excess of $75,000, the defendant's motion for a new trial was overruled. A final judgment in the amount of $75,000 was entered and this appeal followed.

Upon the trial of the case, the first witness to be examined was the plaintiff, widow of the decedent. Over the objection of the defendant, she testified that the age of the decedent was thirty-six. Several assignments of error are directed to the action of the trial court in overruling defendant's objection and in overruling defendant's motion to 'strike' said testimony. This character of evidence has been held inadmissible in such actions. See Kurn v. Counts, 247 Ala. 129, 22 So.2d 725; Smith v. Birmingham Ry. Light & Power Co., 147 Ala. 702, 41 So. 307; Louisville & N. R. R. Co. v. Tegnor, 125 Ala. 593, 28 So. 510.

However, the trial court in its oral charge instructed the jury that the damages provided for under the Homicide Statute are punitive and not compensatory; that compensatory damages are those which will compensate for loss, and that punitive damages are by way of punishment; further that the amount of damages should be directly related to the amount of wrongdoing on the part of the defendant. In written charges the court instructed the jury that in assessing damages they could not consider the pecuniary value of the life of the decedent; that the amount of the damages should not be measured by the value of the decedent's life; further, that no damages are recoverable to compensate the family of the deceased, from a pecuniary standpoint, on account of his death nor [267 Ala. 692] could the jury award any damages to compensate the plaintiff for any financial or pecuniary loss sustained by her or the family of the decedent on account of his death. We entertain the view that these instructions made it plain to the jury that the age of the decedent could not be considered in the assessment of damages, so any error in admitting such evidence was without injury. Supreme Court 45, Tit. 7, Ala.Code 1940; Stevenson & Herzfeld v. Whatley, 1909, 161 Ala. 250, 40 So. 41; Southern Railway Co. v. McEntire, 169 Ala. 42, 53 So. 158, 159; Birmingham Ry., Light & Power Co. v. Littleton, 201 Ala. 141, 77 So. 565; Berry v. Wooddy, 16 Ala.App. 348, 77 So. 942 (certiorari denied 201 Ala. 698, 78 So. 988); 5A C.J.S. Appeal & Error § 1737 c(1); see also Western Union Telegraph Co. v. Holland, 11 Ala.App. 510, 66 So. 926 (misstatement of evidence by trial court).

Defendant insists that the jury's verdict is so excessive as to manifest such bias, passion, or prejudice that the trial court committed reversible error in overruling his motion for a new trial. A review of the evidence discloses that the defendant, driving his automobile, was traveling up Sand Mountain at a rate of speed of 50 to 60 miles per hour. He attempted to pass another automobile traveling in the same direction, in a 'no-passing' zone [Tit. 36, § 58(7), Ala.Code, 1940, as amended] which zone was indicated by a yellow line on each side of a white center line; the yellow lines extended half a mile back in the direction from which the defendant was traveling. Plaintiff's intestate, driving his automobile, was traveling down the mountain and a collision occurred between his automobile and...