Yarbrough v. Mallory

• Decision Date: 06 October 1932
• Docket Number: 7 Div. 111.
• Citation: 144 So. 447,225 Ala. 579
• Parties: YARBROUGH v. MALLORY.
• Court: Alabama Supreme Court

144 So. 447

225 Ala. 579

YARBROUGH v. MALLORY.

7 Div. 111.

Supreme Court of Alabama

October 6, 1932

Rehearing Denied Nov. 10, 1932.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action for damages for personal injury by Samuel G. Yarbrough against John W. Mallory, Jr. Plaintiff, being dissatisfied with the judgment in his favor, appeals. Transferred from Court of Appeals, under section 7326, Code of 1923.

Reversed and rendered.

James F. Matthews, of Anniston, and Harsh, Harsh & Hare, of Birmingham, for appellant.

Merrill Jones, Whiteside & Allen, of Anniston, for appellee.

BOULDIN J.

The action was for personal injuries received in a collision of a truck driven by defendant's servant with plaintiff's motorcycle.

There was verdict and judgment for plaintiff.

Motion for a new trial was made by plaintiff because of inadequacy of the damages assessed by the jury, which motion was overruled.

This ruling presents the sole question for review on this appeal.

The rules governing the review of the rulings of trial courts on motions for new trial upon the ground of excessive or inadequate damages in various forms of tort actions have been often considered and applied in this court.

In National Surety Co. v. Mabry, 139 Ala. 217, 225, 35 So. 698, 700, a case of malicious prosecution, involving injuries for which there is no fixed measure of damages, it was said: "*** when the damages allowed are so excessive as to warrant the belief that the jury must have been misled by some mistaken view of the merits of the case, the court may interfere and set it aside. Sedgwick on Measure of Damages (7th Ed.) 655, note 'a,' as to excessive damages."

This case further quoted approvingly from Lord Mansfield in Gilbert v. Burtenshaw, Cowper, 230, declaring a new trial should be granted for award of damages "which manifestly show the jury to have been actuated by passion partiality or prejudice. But it is not to be done without very strong grounds, indeed, and such as carry internal evidence of intemperance in the minds of the jury."

And again from Judge Story in Whipple v. Cumberland Manufacturing Company, Fed. Cas. No. 17,516, 2 Story 661, holding the verdict should not be set aside for excessive damages "unless the court can clearly see that the jury have committed some very gross and palpable error, or have acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law, by which the damages are to be regulated."

In Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998, L. R. A. 1915F, 491, Ann. Cas. 1916B, 449, a case of personal injury, involving damages not measurable by any legal standard, and the question for review was inadequacy of the damages awarded, this court, after quoting and approving the opinion in Moseley v. Jamison, 68 Miss. 336, 8 So. 744, 745, declared: "In a case like this a trial court is by the law-which protects and provides for trials by jury-invested with no right to set aside such a verdict upon the ground of excessiveness or inadequacy alone unless the amount allowed by the verdict is so excessive or inadequate as to plainly indicate that the verdict was produced 'by passion or prejudice or improper motive."'

The expression, "passion, prejudice or improper motive," has become quite a favored one in our decisions. Alabama Great Southern R. Co. v. Randle, 215 Ala. 535, 112 So. 112; Alabama Fuel & Iron Co. v. Andrews, 215 Ala. 92, 109 So. 750; Mobile & Ohio R. R. Co. v. Brassell, 188 Ala. 349, 351, 66 So. 447.

Other cases have added other terms or varied the form of expression, such as "prejudice, passion, partiality, or corruption." Whitman's Fifth Ave. Garage Co. v. Ricks, 211 Ala. 527, 101 So. 53, 55.

Again we have said (Veitch v. Southern Ry. Co., 220 Ala. 436, 437, 126 So. 845, 846): "'*** the universal rule is not to reverse on that account unless the amount is so excessive or inadequate as to indicate prejudice, passion, partiality, or corruption,' or some other controlling sentiment. Whitman's Fifth Ave. Garage Co. v. Ricks, 211 Ala. 527, 101 So. 53, 55; L. & N. R. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874; Cent. of Ga. Ry. Co. v. White, 175 Ala. 60, 56 So. 574; Montgomery Lt. & Traction Co. v. King, 187 Ala. 619, 65 So. 998, L. R. A. 1915F, 491, Ann. Cas. 1916B, 449; M. & O. R. Co. v. Brassell, 188 Ala. 349, 66 So. 447; Miller v. So. Bell Tel. Co., 195 Ala. 408, 70 So. 730; B'ham Water Works Co. v. Watley, 192 Ala. 520, 68 So. 330; B'ham Macaroni Co. v. Tadrick, 205 Ala. 540, 88 So. 858." And, in the same case, it must be "so excessive as to manifest bias, passion, prejudice or the like." Veitch v. Southern Ry. Co., supra.

These terms are to be taken in an inclusive sense to safeguard the right of trial by jury, by surrounding the verdict with all reasonable presumptions in its favor. Thus bias, meaning "to incline to one side" (Webster's New International Dictionary), or passion, "moved by the feelings or emotions" (Webster's International Dictionary), may include "sympathy" as a moving influence; and there need be no "conscious violation of duty." Veitch v. Southern Railway Co., supra. See, also, Jackson v. Roddy, 224 Ala. 132, 139 So. 354.

So it may be said "prejudice" includes forming an opinion "without due knowledge or examination." Webster's International Dictionary.

Nor is it necessary that the court should inquire and declare what wrongful influence, or failure of duty in the consideration of the case, has wrought a gross miscarriage of justice.

For reasons of public policy, the deliberations of the jury cannot be invaded to find what motive or influence worked the mischief. The record may or may not shed light on the subject.

The internal evidence, the verdict itself, in the light of the facts clearly disclosed by the evidence, usually furnishes the determining data.

Mr. Justice Sayre, dealing with a case where the court sitting as a jury had rendered a judgment which "must have been the result of inadvertence," wisely said: "This court deals with results."

Accordingly, speaking of prejudice, partiality, etc., in Alabama Great Southern R. Co. v. Randle, 215 Ala. 535, 112 So. 112, 113, Mr. Justice Somerville decided: "This rule does not deny that there may be cases, even of injuries not measurable by any legal standard, where the proven injuries are so severe and extensive that a court would be fully justified in setting aside a grossly inadequate verdict; that is, one which fails to give substantial compensation for substantial injuries."

This holding was quoted and approved in the late case of Jackson v. Roddy, 224 Ala. 132, 139 So. 355.

The basic reason for disturbing the verdict of a jury because of excessive or inadequate damages is precisely the same as for disturbing it because not supported by the evidence, or because opposed to the clear and convincing weight of the evidence. In the one case the inquiry is directed to one feature of the verdict; the damages awarded.

Speaking of the power and duty of the trial court in dealing with a verdict for inadequate damages, this court recently held: "That the credibility of witnesses is involved, that opinion evidence of value, not conclusive upon the trior of fact, is to be considered, and that there is no yardstick to measure the damages for physical pain and suffering, does not withdraw the case from the supervisory power of the trial court over the verdicts of juries. In all these matters he is in like position with the jury, and clothed with the power and duty to relieve against verdicts, which, allowing all reasonable presumptions in their favor, are still found to be clearly wrong and unjust from any cause, whether by reason of passion and bias, or from mistake, inadvertence, or failure to comprehend and appreciate the issues." Birmingham News Co. v. Lester, 222 Ala. 503, 504, 133 So. 270.

We adhere to these views.

The review of this ruling is governed by Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738, viz.: The trial court will not be reversed for refusing to disturb the verdict, "unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust."

The verdict was for $1,000.

Plaintiff suffered a fracture of both bones of the left leg just above the ankle; a severe compound fracture. The large bone and surrounding tissues were crushed, the bone broken or shivered into fragments for a length of about one inch. These fragments and overlying parts were removed, the two ends prepared, brought together, fastened in place by a Lane plate, and the leg put in a plaster cast.

The small bone overlapped and healed in due time. For some five months there was no union and healing of the...