Ridout's-Brown Service, Inc. v. Holloway

• Decision Date: 17 April 1981
• Docket Number: S-BROWN
• Citation: 397 So.2d 125
• Parties: RIDOUT'SERVICE, INC., a Corporation v. Dora Elizabeth HOLLOWAY and Juanita Jackson. 79-651.
• Court: Alabama Supreme Court

Page 125

397 So.2d 125

RIDOUT'S-BROWN SERVICE, INC., a Corporation v. Dora Elizabeth HOLLOWAY and Juanita Jackson.

79-651.

Supreme Court of Alabama.

April 17, 1981.

J. Glynn Tubb of Eyster, Eyster, Key & Tubb, Decatur, for appellant.

Jerry R. Knight, Decatur, for appellees.

PER CURIAM.

This cause was initiated by Plaintiffs-Appellees on June 21, 1978, in the Circuit Court of Morgan County, Alabama. Plaintiffs' original complaint alleged: 1) willful misrepresentation and deceit; 2) breach of contract; 3) intentional infliction of emotional distress; and 4) negligent infliction of emotional distress, concerning Defendant's conduct relative to the preparation and embalmment of the body of Charles Ernest Jackson, Plaintiffs' deceased brother. On November 20, 1979, the trial court entered a pre-trial order allowing Plaintiffs to proceed upon their allegations of willful misrepresentation and deceit.

Trial by jury was commenced on January 21, 1980. Appellant's motions for a directed verdict at the end of Plaintiffs' evidence, and at the trial's termination, were overruled. On January 23, 1980, the jury returned a verdict for the Plaintiffs in the amount of $220,000, and final judgment was entered thereon. Defendant's subsequent motion for a new trial, or, in the alternative, judgment n.o.v., was denied. We affirm.

We are unpersuaded by Appellant's contentions that the trial court erred in denying its motions for a directed verdict, judgment notwithstanding the verdict, or a new trial. In determining the correctness of the trial court's refusal of an affirmative instruction for the Defendant, an appellate court will consider evidence in an aspect most favorable to the plaintiff. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224 (1944); Aircraft Sales & Service, Inc. v. Gantt, 255 Ala. 508, 52 So.2d 388 (1951); F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667 (1940).

There is a presumption in favor of a verdict for the plaintiff and in favor of the trial judge's refusal to grant a directed verdict. Alabama Great Southern R. Co. v. Moundville Motor Co., 241 Ala. 633, 4 So.2d 305 (1941). Our careful review of the record reveals considerably more than a mere scintilla of evidence to go to the jury in support of Plaintiffs' allegations. Consequently, denial of Defendant's request for a directed verdict was not error. Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72 (1928). For a case involving a fact situation somewhat similar to the instant case, see Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976).

While we are cognizant of the mandate that a party charging fraud must prove it by clear and convincing evidence, we are convinced that the evidence of record amply supports the jury's verdict for the Plaintiffs on their count of deceit and willful misrepresentation. Hughes v. Cartwright, 222 Ala. 4, 130 So. 550 (1930); Decker v. State National Bank, 255 Ala. 373, 51 So.2d 538 (1951); Indemnity Ins. Co. of North America v. Holiway, 233 Ala. 100, 170 So. 329 (1936).

Of Appellant's other contentions, we discern only one which merits our discussion: The excessiveness vel non of the verdict. We recognize that, pursuant to Code 1975, § 12-22-71, where the only ground of reversal is the excessiveness of damages, the appellate court has the power to determine the proper amount of recovery and affirm the judgment, subject to the filing of a remittitur of the amount in excess thereof. Avery Freight Lines v. Stewart, 258 Ala. 524, 630 So.2d 895 (1953); Gulf States Steel Co. v. Comstock, 17 Ala.App. 430, 85 So. 305 (1920). Necessarily, however, the invocation of this statutory authority is dependent upon our holding that the presumption of correctness of the jury verdict is overcome by a clear showing that the amount of the verdict is the product of passion, bias, prejudice, corruption, or other improper motive or cause. Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963).

The totality of the circumstances, particularly the relationship of the parties, in which the next of kin of the deceased reposed total confidence and trust in the funeral director, coupled with the Defendant's deliberate falsification of the condition of the corpse in order to spare the Defendant the time and trouble of preparing the remains for private viewing by the family and acquaintances, evince a callous disregard for the natural and ordinary sensibilities of the Plaintiffs and amply justify the amount of the award.

AFFIRMED.

All the Justices concur, except JONES, J., who concurs specially.

JONES, Justice (concurring specially).

At first, I was inclined to affirm conditionally, subject to a remittitur of a substantial amount of the award. I have been persuaded by my colleagues on the Bench, however, to join in a unanimous vote for the Per Curiam opinion. Indeed, the facts before us are extreme. Punitive damages are clearly authorized. I do not quarrel with the proposition that, within the context of our religious heritage and cultural values, the "Funeral Home" occupies one of the most exalted positions of trust among our institutions.

It matters not the station in life of the departed; however wretched his...