Birmingham Waterworks Co. v. Vinter
| Citation | 51 So. 356,164 Ala. 490 |
| Parties | BIRMINGHAM WATERWORKS CO. v. VINTER. |
| Decision Date | 13 January 1910 |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.
Action by George Vinter against the Birmingham Waterworks Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
In his oral charge to the jury the court said: "If the nature of the contract is such that a breach of it would cause the plaintiff inconvenience and annoyance, and these were naturally incident to the breach of it, and these facts were known to the parties to the contract at the time of making it, then I charge you that any annoyance, inconvenience, or distress which plaintiff may have sustained would be a proper element of damage for you to consider in this case." Further charging the jury, the court said: "If the jury are satisfied from the evidence that the contract was breached by the defendant, and that plaintiff's feelings had been outraged as a proximate result of such breach, the jury might consider such outraged feelings as an element for the assessment of damages, if such damages upon a breach of the contract proximately resulted, and if the jury believe that such damages were naturally incident to a breach of the contract, and that the same were within the contemplation of the parties to the contract at the time the contract was made." Charge 4, refused to the defendant, is as follows: 'If you believe from the evidence that plaintiff allowed or permitted any other person than a member of his family to take, use, or draw water from the hydrant at plaintiff's residence, defendant will have a right to cut off the water." The evidence objected to tended to show the use of the hydrant by other people than the family occupant.
Campbell & Johnson, for appellant.
C. D Ritter, for appellee.
So much of the oral charge as was excepted to was to the effect that the jury could assess damages for mental anguish incident to or resulting from a breach of the contract, if the same was within the contemplation of the parties at the time the contract was made. This case seems to have been tried before this court decided the case of Birmingham Waterworks v Ferguson, 51 So. 150, and the learned trial court evidently attempted to lay down a rule applicable to telegraph cases, but which are differentiated from cases of this character in the opinion of the court in the Ferguson Case, supra. There it was held, by a majority of the court that mental anguish was not a recoverable element of actual damages growing out of a mere breach of the contract; and we are of the opinion that such damages are not recoverable in the case at bar, and that that portion of the oral charge excepted to by the defendant, was error.
In the Ferguson Case, supra, there was considerable division among the justices; but the main difference, as to a majority,...
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...supra: "The general rule is that damages cannot be recovered for mental anguish in an action of assumpsit. Birmingham Water Works Co. v. Vinter, 164 Ala. 490, 51 So. 356. The ground on which the right to recover such damages is denied, is that they are too remote, were not within the contem......
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...Buenzle v. Newport Amusement Assn., 14 L. R. A. (N. S.) 1242; Smith v. Sandborn State Bank, 30. L. R. A. (N. S.) 517; Birmingham Water Co. v. Vinter, 51 So. 356; M. & O. R. R. Co. v. Freeman, 141 Miss. 7; Power Co. v. Byrd, 160 Miss. 71; G. & S. I. R. R. Co. v. Beard, 129 Miss. 827; Doherty......
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Sellew v. Terminix Int'l Co., Case No.: 2:17-cv-01926-RDP
...growing out of a breach of contract." Sanford v. Western Life Ins. Co., 368 So. 2d 260, 264 (Ala. 1979) (citing Birmingham Water Works Co. v. Vinter, 164 Ala. 490 (1910)). While it is true that Alabama law permits damages for mental anguish (particularly in the context of home construction)......
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F. Becker Asphaltum Roofing Co. v. Murphy, 6 Div. 103.
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