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 Mobile Cab and Baggage Company should have requested an explanatory charge if they were dissatisfied with the charge itself. Empire Clothing Company v. Hammons, 17 Ala. App. 60, 81 So. 838; Gulf States Steel Company v. Comstock, 17 Ala. App. 430, 85 So. 305. The giving of an abstract, argumentative or misleading charge is not of itself reversible error. Ray v. Richardson, 250 Ala. 705, 36 So.2d 89. Supreme Court Rule 45.
The verdict responded in substance to the material issues. But the judgment for recovery of the land will not be disturbed even though damages are not sustained by the evidence without giving opportunity for appellee to make remission of damages or any excess. Code 1940, Tit. 7, § 811; Gulf States Steel Co. v. Comstock, 17 Ala. App. 430, 85 So. 305; Hines v. Wimbish, 204 Ala. 350, 85 So. 765. PER CURIAM.
The bill of exceptions fails to recite that it contains all, or substantially all, of the evidence. The giving of charges for appellee and refusal of charges for appellant will not, therefore, be considered. Postal Tel.-Cable Co. v. Hulsey, 115 Ala. 193, 22 So. 854; Gulf States Steel Co. v. Comstock, 17 Ala. App. 430, 85 So. 305. There was no error in overruling defendant's objection to the introduction in evidence of the policy of insurance. The complaint substantially followed the Code form. There was no material variance.
The judgment was excessive, and new trial should have been granted. Gulf States S. Co. v. Beveridge, 209 Ala. 473, 96 So. 587; Gulf States Steel Co. v. Comstock, 17 Ala. App. 430, 85 So. 305. H. M. Abercrombie and Edgar Allen, both of Birmingham, for appellee.
The bill of exceptions does not purport to contain all the evidence, and it will be presumed there was evidence to support the action of the court in denying motion for new trial, and in instructing the jury. Middle-brooks v. Sanders, 180 Ala. 407, 61 So. 898; Jones v. Spear, 204 Ala. 402, 85 So. 472; Gulf States Steel Co. v. Comstock, 17 Ala. App. 430, 85 So. 305; Morgan v. Embry, 17 Ala. App. 276, 85 So. 580; Kay v. Elston, 205 Ala. 307, 87 So. 525; Mudd v. Gray, 200 Ala. 92, 75 So. 468; City Cleaning Co. v. B'ham Water Co., 204 Ala. 51, 85 So. 291; Ex parte Washburn, 201 Ala. 698, 77 So. 1002. Objections to the oral charge should be to particular parts; not to substance. Coca-Cola Bot. Co. v. Barksdale, 17 Ala. App. 606, 88 So. 36.
We have treated only those assignments of error upon which insistence is registered in brief of appellant's counsel. Supreme Court Rule 10, Code 1940, Tit. 7 Appendix; Gulf States Steel Co. v. Comstock, 17 Ala. App. 430, 85 So. 305; Downey v. Johnson, 31 Ala. App. 514, 19 So.2d 85. The judgment of the primary court is ordered affirmed.
It is further ordered and adjudged that, if said remittitur is duly filed by appellee, the judgment of the lower court for $100 is in all things affirmed. Gulf States Steel Co. v. Comstock et al., 17 Ala. App. 430, 85 So. 305. Affirmed conditionally.
D. Isbell, of Guntersville, for appellee. The bill of exceptions does not purport to contain all the evidence, and the trial court will not be put in error in reference to its finding of facts. Middlebrooks v. Sanders, 180 Ala. 407, 61 So. 898; Hall Farley v. Ala. Termi. Imp. Co., 173 Ala. 398, 56 So. 235; City of Montgomery v. Stephens, 14 Ala. App. 274, 69 So. 970; So. Ry. Co. v. E. L. Kendall Co., 14 Ala. App. 242, 69 So. 328; Climer v. St. Clair Co., Tel. Co., 200 Ala. 656, 77 So. 30; Prude v. Thompson, 201 Ala. 595, 79 So. 21; Gulf States Steel Co. v. Comstock, 17 Ala. App. 430, 85 So. 305; Mathews Hdw. Co. v. Allied Sales Corp., ante, p. 303, 97 So. 166. SAMFORD. J.