Cox v. Birmingham Ry., Light & Power Co.

• Decision Date: 25 November 1909
• Citation: 163 Ala. 170,50 So. 975
• Parties: COX v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

50 So. 975

163 Ala. 170

COX v. BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

November 25, 1909

Appeal from Circuit Court, Jefferson County; John H. Miller, Special Judge.

Action by S.E. Cox, as administratrix, against the Birmingham Railway, Light & Power Company. From an order setting aside a verdict for plaintiff and ordering a new trial, plaintiff appeals. Affirmed.

Bowman Harsh & Beddow, for appellant.

Tillman Grubb, Bradley & Morrow, for appellee.

DOWDELL C.J.

This is an action for damages for the wrongful killing of the plaintiff's intestate. The case was tried on the twenty-fourth, twenty-fifth, and twenty-sixth counts of the complaint. Intentional or wanton wrong is alleged in the twenty-fourth count, while the twenty-fifth and twenty-sixth counts are based on simple negligence. In each of these counts the damages claimed are laid in the sum of $30,000. A verdict for the plaintiff was returned by the jury for $15,000. This verdict the trial court on motion of the defendant set aside and ordered a new trial; and it is from this order that the present appeal is prosecuted under the statute. The only assignment of error on the record is based on the order appealed from, setting aside the verdict and granting the new trial.

Among other stated grounds of the motion for a new trial was that of the verdict's being excessive. This is one of two grounds upon which, according to the assumption of counsel for appellant, the trial court based its conclusions in granting a new trial; counsel insisting that the ruling was reversible error. If, for the sake of argument, it should be conceded that the verdict of the jury in the present case was referable only to the wanton count of the complaint, which authorized the imposition of exemplary or punitive damages it does not follow that in the assessment of such damages the jury is to be left to an unbridled and arbitrary power without any guide in law or beyond the supervision and control of the court. We find the principle well stated in the recent case of Coleman v. Pepper, 49 So. 310, where it was said: "Punitive damages, being apart from compensation, are not recoverable as a matter of right. Their imposition is discretionary with the jury. And this discretion is not an unbridled or arbitrary one, but a legal, sound, and honest discretion; and after instructing the jury in respect to the elements which must be found to exist, to warrant the assessment of such damages, in submitting to the jury the question of imposing punitive damages, the court should always safeguard the submission with such instructions as that the jury will not be misguided, but will be held mindful, in fixing such damages, that they should act with due regard to the enormity or not of...