Crommelin v. Montgomery Independent Telecasters, Inc.

• Court: Alabama Supreme Court
• Writing for the Court: HARWOOD; LIVINGSTON
• Citation: Crommelin v. Montgomery Independent Telecasters, Inc., 194 So.2d 548, 280 Ala. 391 (Ala. 1967)
• Decision Date: 26 January 1967
• Docket Number: 3 Div. 214
• Parties: John G. CROMMELIN v. MONTGOMERY INDEPENDENT TELECASTERS, INC.

Page 548

194 So.2d 548

280 Ala. 391

John G. CROMMELIN v. MONTGOMERY INDEPENDENT TELECASTERS, INC.

3 Div. 214.

Supreme Court of Alabama.

Jan. 26, 1967.

Kenneth Cooper, Bay Minette, for appellant.

Crenshaw & Waller, Montgomery, for appellee.

HARWOOD, Justice.

In the proceedings below the plaintiff claimed damages of $500,000 for breach of contract. The jury returned a verdict in favor of the plaintiff, and fixed his damages at $11,500, and judgment was entered pursuant to the verdict.

Thereafter the defendant timely filed a motion for a new trial, averring among other grounds, excessiveness of the damages. After hearing and argument on the motion, the court entered an order finding that the verdict was excessive by $6,750, and granted the motion for a new trial unless the plaintiff, within a specified time, filed an instrument remitting all damages in excess of $5,000, and agreeing to a reduction of the judgment to $5,000. The plaintiff did not file the written remittitur within the period allowed. Hence, the order granting the new trial became effective. This appeal is from the order granting the motion for a new trial under the above conditions.

The action below was for a breach of contract growing out of the refusal of the defendant to permit the plaintiff to make two political broadcasts after the plaintiff had contracted with the defendant for two television appearances on defendant's broadcasting facility.

The complaint contained three counts. However, the court gave the general affirmative charge in favor of the defendant as to Counts 2 and 3, and the case was submitted to the jury solely on Count 1.

Count 1 as amended is substantially in code form. It did not aver any special damages.

The evidence presented below shows that the plaintiff was a candidate for two nominations in the Democratic primary conducted in May 1964, one for the office of Representative in the United States House of Representatives from the Second Congressional District of Alabama, and the other as Presidential Elector, Place No. 1, which was a statewide race.

On 7 April 1964, the plaintiff entered into a contract with the defendant for two thirty-minute telecasts, to be delivered over defendant's facility on 15 April 1964, beginning at 7 P.M., and on 1 May 1964, beginning at 7:30 P.M. The plaintiff gave his check for $220.00 in payment for these two telecasts, and also paid the defendant $31.00 for some spot announcements advertising his prospective appearances.

When the plaintiff came to the defendant's television station at 6:30 P.M., on 15 April 1964, he was informed by its agent, Frank Tirico, that the defendant's Washington lawyer had advised Tirico not to permit the broadcast. It was the defendant's contention that a satisfactory script of the plaintiff's proposed speech had not been submitted to the station. This question was resolved against the defendant by the jury and is not material to this review. At any rate, after discussion between the plaintiff and Tirico, the plaintiff was finally informed that he would not be permitted to make the telecast.

On 1 May 1964, the plaintiff again appeared at the defendant's station and sought permission to make his second thirty-minute telecast at 7:30 P.M., but was again refused permission by agents of the defendant to make the broadcast.

The check for $220.00 which the plaintiff gave in payment of the broadcasts was returned to the plaintiff and the defendant also sent to the plaintiff its check for $31.00, as a refund of the payment received for the spot announcements. This latter check had not been cashed by the plaintiff at the time of the trial below.

In an effort to establish his damages, the plaintiff testified that they consisted of the cost of his campaign expenses, some $3,188.05. He testified he began his campaign shortly after 25 February 1964. Included in this total of campaign expenses was $500.00 as qualifying fee as a candidate for the Democratic nomination to Congress, and $50.00 as the qualifying fee for his Presidential Elector candidacy. The remaining items were the usual campaign expenses such as hotels, motels, advertising, secretarial expense, printing, etc.

The plaintiff further testified that he had suffered an additional damage of $10,000, estimated on the basis of 100 days spent campaigning at $100.00 per day, on the basis that he had once hired a lawyer who did about five minutes work and charged him $100.00, and 'I paid him at the rate of $100.00 a day, and I figured my time was probably worth about what his was.'

The plaintiff further testified that additional damages were suffered by him in the amount of $45,000, this being two years' salary as a member of the United States House of Representatives.

In an attempted proof of further additional damages, the record shows the following during the direct examination of the plaintiff:

'MR. COOPER: How much other damages did you suffer in addition to those that you have enumerated, Admiral?

'MR. WALLER: I object, if the Court please.

'THE COURT: I overrule the objection.

'MR. COOPER: All...