Treadwell Ford, Inc. v. Leek
| Decision Date | 29 June 1961 |
| Docket Number | 1 Div. 929 |
| Citation | 133 So.2d 24,272 Ala. 544 |
| Parties | TREADWELL FORD, INC. v. Elmer H. LEEK. |
| Court | Alabama Supreme Court |
Alex T. Howard, Jr., Chas. B. Bailey, Jr., and McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellant.
J. Glenn Cobb, Jr., Mobile, for appellee.
Elmer H. Leek purchased a 1958 used Plymouth automobile from Treadwell Ford, Inc., of Mobile, on or about December 3, 1958.
The automobile proved unsatisfactory to Leek. Being unable to adjust his differences, Leek brought this suit against Treadwell Ford, Inc., claiming damages in the amount of $5,000. We will sometimes hereinafter refer to the defendant, Treadwell Ford, Inc., simply as Treadwell.
The complaint contained three counts. Count 1 charged deceit substantially in Code form, Title 7, § 223, Form 21. Count 2 was for breach of warranty and was substantially in Code form, Title 7, § 223, Form 24. Count 3 was for deceit. It charged the defendant with the willful misrepresentation of a material fact made with intent to deceive and averred that plaintiff relied upon said representation, etc. See People's Auto Co. v. Staples, 225 Ala. 372, 143 So. 553.
Treadwell filed two pleas. The first was, 'Not guilty.' The second was, 'The allegations of the complaint are untrue.'
The case was tried on the issues so made. The jury returned a verdict in favor of the plaintiff, Leek, in the sum of $5,000. Treadwell, the defendant, filed a motion for a new trial. It was overruled. Treadwell has appealed to this court.
The trial court gave plaintiff's requested written charge No. 9. It reads:
'I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case that the Defendant did intentionally and willfully injure the Plaintiff, he would be entitled to recover not only his actual damages, but punitive damages by way of punishment.' (Emphasis supplied.)
Aside from the fact that punitive damages were not recoverable under Count 2 of the complaint, which was ex contractu (Western Union Tel. Co. v. Rowell, 153 Ala. 295, 45 So. 73), the giving of plaintiff's Charge 9 was erroneous in that it asserts that plaintiff would be entitled to recover punitive damages under the circumstances hypothesized in the charge.
Punitive damages are not recoverable as a matter of right except as provided by statute. Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386.
The imposition of such damages in cases of fraud and deceit is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing a similar wrong. Louisville & N. R. Co. v. Bizzell, 131 Ala. 429, 30 So. 777; Coleman v. Pepper, 159 Ala. 310, 49 So. 310; First National Bank of Huntsville v. Stewart, 204 Ala. 199, 85 So. 529, 13 A.L.R. 302; Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604; Lehigh Portland Cement Co. v. Sharit, supra; Schock v. Bear, 250 Ala. 529, 35 So.2d 97.
The effect of this error cannot be obviated by reference to the oral charge of the court. The oral charge could have corrected the error of the written charge in question only by some manner of statement or other treatment tantamount to an instruction that the jury were not to accept the written charge as a correct statement of the law. First National Bank of Huntsville v. Stewart, supra. The record shows no recognition or correction of the error of the charge pointed out above. See Shock v. Bear, supra.
It cannot be said from a reading of this record that the jury verdict of $5,000 did not include punitive damages.
Written Charge 1, given for the plaintiff, reads:
'The Court charges the jury that if after considering all the evidence in this case, you are reasonably satisfied therefrom that the Plaintiff is entitled to recover, and if you are reasonably satisfied from the evidence that the Defendant committed that acts set out in the Complaint knowingly, wantonly, or willfully, you may include in...
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Henderson By and Through Hartsfield v. Alabama Power Co.
...are not constitutionally protected, APCo cites Alabama Power Co. v. Rembert, 282 Ala. 5, 208 So.2d 205 (1968); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961); Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386 (1937). The principle expressed in these cases, howe......
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IN RE SHARPE
...153 Ala. 295, 45 So. 73 (1907); Western Union Telegraph Company v. Benson, 159 Ala. 254, 48 So. 712 (1909); and Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961)). Therefore, based on above, the Court finds that the plaintiffs are not entitled to punitive damages under any 2. ......
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...Co., 627 So.2d 878, 887 (Ala.1993); Alabama Power Co. v. Rembert, 282 Ala. 5, 6, 208 So.2d 205, 206 (1968); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 546, 133 So.2d 24, 25 (1961); Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 43, 173 So. 386, 388 Therefore, after punitive damages hav......