Lewis v. Moss
Decision Date | 29 April 1977 |
Citation | 347 So.2d 91 |
Parties | Theo E. LEWIS and Elizabeth S. Lewis v. William Gary MOSS and World Bazaar et al. SC 2190. |
Court | Alabama Supreme Court |
Warren L. Hammond, Jr. and Wayne Morse, Jr., Mobile, for appellants.
Bert S. Nettles, Mobile, for appellees.
Where primary and derivative claims in a consolidated action result in a jury verdict awarding damages to the injured wife and a defendant's verdict in the husband's case; where the only defense in the husband's suit is a general denial; and where the We emphasize at the outset that our affirmative reply to the issue here presented is necessarily dependent upon the factual accuracy of each of the premises set out in the above stated question. Counsel for appellees (defendants below) accepts premise No. 1 that the jury, in a single trial of the two claims awarded damages to the wife, and returned a defendant's verdict in the husband's case and premise No. 2 that, as to the issue of liability, there was no legal basis for different verdicts. He does not accept premise No. 3 that there was uncontradicted evidence of some damage to the husband.
evidence is uncontradicted that the husband suffered some damages not claimed by his wife, is the husband entitled to a new trial on the ground of inconsistent jury verdicts? Yes; we reverse and remand.
Before treating appellee's contention with respect to this latter premise, we will first discuss two additional contentions, each of which assumes arguendo that our statement of the issue here presented is factually accurate.
First, it is contended that while
The only authority cited for this proposition is an Illinois intermediate appellate court case of Kimmel v. Hefner, 36 Ill.App.2d 137, 183 N.E.2d 13 (1962), which contains the following language:
We are unfamiliar with the rules of practice and procedure in Illinois, but this language of the Illinois Court of Appeals is strange and unsuited to our practice.
Our practice and procedure contains no requirement that, where two separate claims are consolidated in a single action, the prevailing party plaintiff must appeal as a prerequisite to the losing party plaintiff's right of appellate review. Indeed, such a rule would presuppose that the losing party had control, or right of control, of the prevailing party an obvious non-fact which the law will not assume. In the present posture of the instant case, we cannot deny this appellant appellate review on the ground that his husband's primary action stands finally adjudicated without appeal.
Next, appellees contend:
Failure of Proof of Damages
Finally, counsel for appellees asserts:
This is a forthright and accurate statement of the rule. It is stated in Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965):
"The burden is upon one claiming damages to establish the existence of, and the amount of such damages by competent evidence."
Appellees maintain, however,
Before addressing the quantitative evidentiary issue, we feel constrained to comment upon the Court of Civil Appeals' opinion in Harden v. Alabama Great Southern R. R. Co., 45 Ala.App. 301, 229 So.2d 803 (1969), cited by appellees/defendants for the legal proposition that these husband and wife verdicts were "different but not inconsistent". At page 305, 45 Ala.App., at page 806, 229 So.2d, it is stated:
The reasoning and conclusion in the first (unemphasized) portion of the above-quoted language from Harden is correct. As the general rule set out above makes clear, proof of existence and amount of damages is essential to recovery. Put another way, the...
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