51 So. 356 | Ala. | 1910
So much of the oral charge as was excepted to was to the effect that the jury could assess
In the Ferguson Case, supra, there was considerable division among the justices; .but the main difference, as to a majority, was not as to the element of recoverable damages, but over the meaning of the word “annoyance,” and whether or not it was distinguishable from the word “inconvenience” as used and applicable to the facts of the case. Justice Denson and the writer were of the opinion that damages for mental anguish were not recoverable, and condemned the word “annoyance,” because it would include mental anguish; the Chief Justice and Justice Sayre were also- of the opinion, that damages for mental anguish were not recoverable, but upheld the charge upon the theory that “neither inconvenience nor annoyance involves mental anguish;” while Justices McClellan and Mayfield did not qualify their indorsement of the charges, and the opinion does not disclose whether they did or did not think that damages for mental anguish were recoverable. On the other hand, Justice Simpson thought the damages should be con
This case Avas tried upon the general issue alone, and matter in avoidance of the allegations of the complaint, or in excuse or justification of the wrongful act imputed to the defendant, was not Avithin the issue made.— American Oak Co. v. Ryan, 112 Ala. 337, 20 South. 644. The exceptions to the ruling on evidence, as insisted upon in brief of counsel, related to an effort to shoAv facts which Avould tend to justify the breach. For the same reason charge 4, requested by the defendant, was properly refused.
We find in brief of counsel for appellant an insistence of error and argument thereon in giving the general charge for the plaintiff.- The record fails to disclose that such a charge was given. While the argument treats the point as referring to the general charge in favor of the plaintiff, it refers to assignment of error 21, which relates to the refusal of the general charge requested by the defendant. It is sufficient to say, however, that the trial court properly, refused the general charge requested by the defendant.
Reversed and remanded.