Opinion
6 Div. 657.
October 30, 1934.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Action for damages by Mrs. J. B. Ivey against Herman Saks Sons and John H. Roper, Jr. From a judgment granting plaintiff's motion for a new trial, defendants appeal.
Affirmed.
Beddow, Ray Jones, of Birmingham, for appellants.
There is no fixed monetary standard for the assessment of damages of the sort claimed by plaintiff. The extent of the injury proximately caused by the receipt of the letter was a matter for the sound judgment of the jury. The court was without jurisdiction to determine that she was entitled to compensable damages. Montgomery E. Ry. Co. v. Mallette, 92 Ala. 209, 9 So. 363; Birmingham Ry., L. P. Co. v. Coleman, 181 Ala. 478, 61 So. 890; Western Union Tel. Co. v. Cunningham, 99 Ala. 314, 14 So. 579; Sheffield Co. v. Harris, 183 Ala. 357, 61 So. 88. The jury is not concluded by the opinions of witnesses. 13 Ency. Dig. Ala. Rep. Evidence, § 431; 6 Ency. Dig. Ala. Rep. 527; Blalack v. Blacksher, 11 Ala. App. 545, 66 So. 863; L. N. R. Co. v. Rayburn, 198 Ala. 191, 73 So. 461; Cleveland v. Wheeler, 8 Ala. App. 645, 62 So. 309.
Wilkinson Wilkinson, of Birmingham, for appellee.
When the jury fails altogether to allow damages in cases where plaintiff is by law entitled to compensation, the verdict will be set aside. Nominal damages are no damages. James v. Richmond D. R. Co., 92 Ala. 231, 232, 9 So. 335; 4 Sedgwick on Damages (6th Ed.) pp. 2751. 2753, 2754; 1 Moore on Facts, p. 135; Armytage v. Haley, 4 Q. B. 917. The action of the trial court in setting aside the verdict should not be disturbed. Conner v. Central of G. R. Co., 221 Ala. 358, 128 So. 789; Jackson v. Roddy, 224 Ala. 132, 139 So. 354.
Plaintiff (appellee) sued defendants (appellants) for a wrongful, unlawful, and malicious violation of a criminal statute — sections 3194, 3195, of the Code of 1928. The complaint sets out in haec verba the letter. Plaintiff alleged that the defendants mailed the certain letter to plaintiff by United States mail and that the plaintiff received it.
The record is without dispute that the letter was mailed to plaintiff, as alleged, and received by the plaintiff, as alleged.
Plaintiff claimed damages alleging she was greatly shocked, frightened, humiliated, and embarrassed, was made nervous, made sick and sore for a long period of time, and caused to suffer great mental anguish and was annoyed and inconvenienced.
The jury returned a verdict for the plaintiff for $1, whereupon plaintiff, in due time, filed a motion for a new trial and this motion was heard by the court, and by the court granted, the verdict and judgment set aside, and plaintiff granted a new trial.
The view we take of this appeal is that it falls within the class of cases, where the judgment of the trial judge should he given full consideration and every presumption indulged in its favor. The letter, made the proximate cause of the injury, is one that never ought to have been sent to any one and certainly not to one who was not indebted to the firm. The evident purpose of the letter is to frighten delinquent debtors into settlement of their accounts. A practice never countenanced by courts of justice. What effect the receipt of such a letter would have upon a delicate, refined, nervous, gentlewoman is of easy inference. The jury found that this plaintiff was injured by the letter. If so, she was entitled to substantial damages in such amount as the jury may fix, and a verdict for $1 does not amount to compensation. The least amount which could be considered would be such an amount as would carry with it the costs of the prosecution. It is an anomaly to say by a verdict, the plaintiff has been wronged, she has been injured by the wrong; she has a remedy in the courts, but she must pay the costs.
The trial judge had all the parties before him, he heard the testimony, the presumptions are in favor of his finding, and we will not disturb his judgment. Jackson v. Roddy, 224 Ala. 132, 139 So. 354.
Let the judgment be affirmed.
Affirmed.