Stafford v. Durrett , 223 Ala. 705 ( 1931 )

The newly discovered evidence set out as a ground for a new trial consists, at best, of inferential contradictions of the plaintiff made to a third person, and is of such an inconclusive character as would not justify a reversal of the trial court for overruling this ground of the motion, conceding that the movant showed proper diligence, which is questionable. Jones Co. v. Tucker, 132 Ala. 305, 31 So. 21; Fries v. Acme White Lead Color Works, 201 Ala. 613, 79 So. 45.

We find no assignments of error as numbered under the appellant's "Proposition No. 1."

We are of the opinion that the verdict was so grossly excessive as to show bias and prejudice on the part of the jury. If there was an assault, but which was necessarily found by the jury, it was only a technical one, and from which the plaintiff suffered no hurt or physical injury. True, the shove was accompanied by obscene and insulting language which amounted to a certain degree of aggravation and humiliation, but we think the amount of damages awarded was grossly excessive.

Finding no reversible error other than as to the damages awarded, this case is reversed and remanded unless the plaintiff within thirty days shall file a remittitur of all damages in excess of the sum of $600, as provided by section 6150 of the Code of 1923, and, if such a remittitur is so filed, the judgment of the circuit court is affirmed for the sum of $600; appellee to be taxed with the cost of appeal and appellant with the cost of the circuit court.

Reversed and remanded conditionally.

GARDNER, BOULDIN, and FOSTER, JJ., concur.