Alabama Fuel & Iron Co. v. Andrews

• Decision Date: 14 October 1926
• Docket Number: 6 Div. 554
• Citation: 215 Ala. 92,109 So. 750
• Parties: ALABAMA FUEL & IRON CO. v. ANDREWS.
• Court: Alabama Supreme Court

109 So. 750

215 Ala. 92

ALABAMA FUEL & IRON CO. v. ANDREWS.

6 Div. 554

Supreme Court of Alabama

October 14, 1926

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by G.W. Andrews against the Alabama Fuel & Iron Company. From a judgment setting aside the verdict, defendant appeals. Reversed and rendered.

Percy Benners & Burr, of Birmingham, for appellant.

H.M Abercrombie and Edgar Allen, both of Birmingham, for appellee.

GARDNER J.

Appellee recovered a judgment for $1 against appellant in this trespass action, which, upon motion of plaintiff, was set aside. Defendant prosecutes this appeal to review the ruling of the court in setting aside said judgment.

For a report of the former appeal in this cause see Alabama Fuel & Iron Co. v. Andrews, 212 Ala. 336, 102 So. 799 where a sufficient outline of the case appears without necessity for repetition here.

As the verdict in this case was for the plaintiff, the action of the trial court in granting a new trial could only properly be rested upon the inadequacy of the sum awarded. Mobile & Ohio R. Co. v. Brassell, 188 Ala. 349, 66 So. 447.

We are not favored with brief by counsel for appellee, and there is nothing in the record indicating the view of the trial court other than the ruling on the motion. The rule by which this court is governed in cases of this character is expressed in the following language from Mobile & Ohio R.R. Co. v. Brassell, 188 Ala. 351, 66 So. 448:

"The jury saw and heard the witnesses, and it was peculiarly within their province to determine whether or not the plaintiff sustained any substantial damages as the proximate result of the wrong complained of, and which they found to exist. This being a case where the law provides a trial by jury, the trial court was invested with no right to set aside the verdict for either excessiveness or inadequacy alone, unless the amount allowed by the verdict was so excessive or inadequate as to plainly indicate that the verdict was produced 'by passion or prejudice or improper motive.' "

There was evidence from which the jury was authorized to conclude plaintiff suffered no real substantial damage to any of his goods--with particular reference to the piano--the evidence upon this question being in sharp conflict. The question of damages for any inconvenience suffered was one peculiarly within the province of the jury (National Surety Co. v Mabry, 139 Ala. 217, 35 So. 698; Montgomery Lt. & Traction Co. v. King, 187 Ala. 619, 65 So. 998, L.R.A. 1915F, 491, Ann.Cas.1916B, 449), and there was evidence tending to show that another house had been...