Opinion
6 Div. 589.
June 5, 1930.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Jas. W. Strother, of Dadeville, and Wilkinson Burton, of Birmingham, for appellant.
Damages for physical pain and mental anguish are in large measure discretionary, and the rule is not to reverse unless the amount is so excessive or inadequate as to indicate prejudice, passion, or corruption. Veitch v. Southern R. Co., 220 Ala. 436, 126 So. 845; Birmingham M. Co. v. Tadrick, 205 Ala. 540, 88 So. 858; Central of Ga. R. Co. v. White, 175 Ala. 60, 56 So. 574; Mobile O. R. Co. v. Brassell, 188 Ala. 349, 66 So. 447; Montgomery L. T. Co. v. King, 187 Ala. 619, 65 So. 998, L.R.A. 1915F, 491, Ann. Cas. 1916B, 449; National Sur. Co. v. Mabry, 139 Ala. 217, 35 So. 698; Mosely v. Jamison, 66 Miss. 52, 5 So. 524. Count D states a cause of action. Hayes v. Wabash R. Co., 163 Mich. 174, 128 N.W. 217, 31 L.R.A. (N.S.) 229; Harmon v. Barber (C.C.A. Ohio) 247 F. 1; El Paso N.E. R. Co. v. Landon (Tex.Civ.App.) 124 S.W. 744; Pugh v. Wash. R. E. Co., 134 Md. 196, 106 A. 522.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellees.
It is the duty of the trial court to vacate an award of damages for an excessive amount, when it is so excessive as to manifest bias, passion, prejudice, or the like. Veitch v. Southern R. Co., 220 Ala. 436, 126 So. 845. The action of the trial court in granting motion for new trial will not be disturbed unless the evidence plainly and palpably supports the verdict. Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473; Scientific Amer. Comp. Dept. v. Gillespie, 4 Ala. App. 590, 58 So. 756; Hervey v. Hart, 149 Ala. 604, 42 So. 1013, 9 L.R.A. (N.S.) 213, 123 Am. St. Rep. 67, 13 Ann. Cas. 1049. Appellee's motion should have been granted on other grounds contained therein, as well as for excessiveness of the verdict, and for that reason also the case must be affirmed. Count D was subject to demurrer. Chicago A. v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033, Ann. Cas. 1914A, 501; Louisville N. R. Co. v. Jones, 6 Ala. App. 617, 60 So. 945; Central of Ga. v. Wallace, 141 Ga. 51, 80 S.E. 282, 49 L.R.A. (N.S.) 429, Ann. Cas. 1915A, 1076; Southern R. Co. v. Miller (Ky.) 110 S.W. 351; Green v. Missouri K. T. R. Co., 121 Mo. 720, 97 S.W. 646; Cormack v. New York N.H. H. R. Co., 196 N.Y. 442, 90 N.E. 56, 24 L.R.A. (N.S.) 1209, 17 Ann. Cas. 949; Paducah Tr. Co. v. Wietlauf, 176 Ky. 82, 195 S.W. 99, L.R.A. 1917F, 353; James v. Davis, 209 Ala. 87, 95 So. 347; Cook v. Sheffield Co., supra.
In this case the trial court, who saw and heard the witnesses, granted a new trial because the verdict was excessive. We have often held that in reviewing the granting of a motion for a new trial we will indulge the same presumption in favor of the ruling as when the motion is denied and will not disturb the ruling unless it appears that the great weight of the evidence plainly and palpably supported the verdict. Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473. We are not prepared to say that the trial court was in error in holding that the verdict was excessive. Veitch v. Sou. R. R., 220 Ala. 436, 126 So. 845.
Moreover, in passing upon the action of the trial court in granting a motion for a new trial, this court will not confine the inquiry to the sole ground upon which the motion was granted, but will affirm its action, notwithstanding it was not justified under the ground assigned, if it affirmatively appears from the record that it should have been granted upon some other ground included in the motion. It is sufficient to say that if there were not other errors upon the trial which warranted the granting of the new trial, Count D, the only one that went to the jury, was subject to the defendants' demurrer, especially grounds 6 and 12.
The judgment of the circuit court is affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.