On April 17, 1986, Green Oil Company filed a two-count complaint against Dean Hornsby and Sheila Hornsby, d/b/a Hornsby's Grocery, for the recovery of certain personal property, including gasoline pumps and an underground tank, and on an open account for gasoline delivered and not paid for. The Hornsbys denied the debt on open account but admitted that the personal property belonged to Green Oil Company, and they filed a counterclaim alleging breach of contract and fraud. Green Oil Company filed a general denial to the counterclaim. The case was tried to a jury. The jury awarded Green Oil Company $2,000 and awarded the Hornsbys compensatory damages of $14,704.06 and punitive damages of $150,000. After Green Oil Company appealed to this Court, the case was remanded to the trial court for a hearing on the question of excessiveness of the jury verdict, pursuant to Hammond v. City of Gadsden, 493 So.2d 1374 (Ala. 1986). Following the Hammond hearing, the trial court ordered a new trial conditioned upon the Hornsbys' refusal to accept a remittitur of $125,000 in punitive damages. The Hornsbys accepted the trial court's remittitur of $125,000, reserving the right to question the trial court's decision on remittitur in the event Green Oil Company continued to prosecute the appeal pending in this Court.
We have searched the record and have been unable to find where Green Oil Company filed a motion for a directed verdict at any time during the trial of this case. Therefore, Green Oil Company's first issue, whether the trial court erred in refusing to grant its motion for a judgment notwithstanding the verdict, cannot be considered by this Court. Rule 50(b), Ala.R. Civ.P., provides in pertinent part:
This Court has held that the filing of a motion for a directed verdict is a prerequisite to the filing of a motion for a judgment notwithstanding the verdict. Rush v. Eason Plumbing & Electrical Contractors, Inc., 361 So.2d 516 (Ala.1978); Sunshine Homes, Inc. v. Newton, 443 So.2d 921 (Ala. 1983); Black v. Black, 469 So.2d 1288 (Ala. 1985).
Green Oil Company argues that it was error for the trial court to refuse to grant a new trial because the verdict was against the great weight and preponderance of the evidence. The decision of a trial court refusing to grant a new trial on the ground that the verdict is contrary to the great weight and preponderance of the evidence will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, 740 (1891), overruled on other grounds, Jawad v. Granade, 497 So.2d 471 (Ala.1986). Suffice it to say, that we are not clearly convinced that it was wrong and unjust for the trial court not to grant a new trial on the basis that the verdict was against the great weight and preponderance of the evidence. The evidence of fraud on the part of Green Oil Company was sufficient to support the verdict.
Green Oil Company next argues that it was error for the trial court to refuse to set aside the award of punitive damages. We disagree.
Reviewing the evidence most favorably toward the Hornsbys, as our standard of review requires, we note the following: There was evidence of a representation to the Hornsbys by Green Oil Company, that Green Oil Company would charge the Hornsbys seven cents a gallon above Green Oil Company's cost of purchasing gasoline. There is evidence that Green Oil Company never intended to charge the Hornsbys no more than seven cents a gallon above Green Oil Company's cost for gasoline; therefore, the jury could have found that that statement was false. There is evidence that initially Green Oil Company did charge the Hornsbys approximately seven cents a gallon above its cost for gasoline; however, this changed.
On December 27, 1985, Green Oil Company charged the Hornsbys 13.4 cents per gallon above Green Oil Company's cost. This difference increased dramatically during 1986, and the following was the difference between the per gallon cost charged to the Hornsbys and the amount paid by Green Oil Company on the specified dates: January 9—16.4 cents; January 16—17.65 cents; January 23—18.6 cents; January 30 —19.7 cents; February 6—20.25 cents; February 13—24.2 cents; February 20— 27.5 cents; February 27—29.25 cents.
There was evidence of a representation made by Green Oil Company to the Hornsbys; there was evidence that the representation was false and that Green Oil Company knew it to be false; and there was evidence from which the jury could reasonably infer that the representation was made by Green Oil Company with the intent and purpose of deceiving the Hornsbys.
The Hornsbys were owners and operators of Hornsby's Grocery Store. They had never been in the grocery store or gasoline business before. When they started this business, they were dealing with an Amoco supplier from Camp Hill. They were satisfied with their relationship with this dealer, and they changed because of the representations made to them by partners of Green Oil Company. There is credible evidence that Mrs. Hornsby did not know how to ascertain the wholesale price of gasoline prior to the filing of this lawsuit
As shown from the facts stated above, there was evidence to support an award of punitive damages.
The trial court in its Hammond order found the following:
As previously stated in this opinion, the Hornsbys did accept the $125,000 remittitur subject to our review of the remittitur in the event that Green Oil Company persisted in its appeal.
In City Bank of Alabama v. Eskridge, 521 So.2d 931, 932-33 (Ala.1988), Justice Jones, writing for the Jones Division of this Court, stated as follows:
"`First, it may include or exclude a sum which is clearly recoverable or not as a matter of law, or which is totally unsupported by the evidence, where there is an exact standard or rule of law that makes the damages legally and mathematically ascertainable at a precise figure. In these situations, a trial court may, and should, reduce or increase the amount of the verdict to reflect the amount to which the parties are entitled as a matter of law. Second, a jury verdict may be flawed because it results, not from the evidence and applicable law, but from bias, passion,
"Hammond v. City of Gadsden, 493 So.2d 1374, 1378 (Ala.1986)."
Thus, the invocation of the trial court's authority under Ala.R.Civ.P. 59(f) to determine the proper amount of recovery and to deny a new trial, subject to filing of a remittitur of the amount in excess of the proper amount, is dependent upon the trial court's holding that the presumption of correctness of the jury verdict has been overcome by a clear showing that the amount of the verdict is excessive. It is also well understood that in considering the adequacy or excessiveness of a verdict, each case must be determined on its own facts, and that neither the trial court, nor this Court, may substitute its judgment for that of the jury. City Bank of Alabama v. Eskridge, supra; Hammond v. City of Gadsden, supra.
Because the purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future, the proper amount of punitive damages rests largely within the jury's discretion. However, although punitive damages need bear no particular relationship to actual damages, they, nonetheless, must not exceed an amount that will accomplish society's goals of punishment and deterrence. Maryland Casualty Co. v. Tiffin, 537 So.2d 469 (Ala. 1988); City Bank of Alabama v. Eskridge, supra; Roberson v. Ammons, 477 So.2d 957 (Ala.1985).
What amount is sufficient to punish Green Oil Company and to deter it, and others similarly situated, from committing similar acts in the future? Traditionally, the jury has been afforded a great deal of discretion in assessing punitive damages. Roberson v. Ammons, supra. The exercise of that discretion is, of course, subject to judicial review to insure that it is not the result of bias, passion, prejudice, corruption, or other improper motive. City Bank of Alabama v. Eskridge, supra. The trial court in the case at issue found that the verdicts were in no way affected by bias, passion, prejudice, corruption, or other improper motive or conduct. This Court has recognized, however, that even though a jury verdict may not be excessive because it is the result of an improperly functioning jury, it is possible for a verdict to be excessive even when it is the result of a properly functioning jury. See City Bank of Alabama v. Eskridge, supra. For example, in assessing punitive damages, the jury is not allowed to consider the financial position of the defendant, Southern Life & Health Ins. Co. v. Whitman, 358 So.2d 1025 (Ala. 1978). The defendant's financial position is, however, a consideration essential to a post-judgment critique of a punitive damages award. City Bank of Alabama v. Eskridge, supra; see, also, Hammond v. City of Gadsden, supra. Bearing in mind that punitive damages must not exceed an amount that will accomplish society's goals of punishment and deterrence, it is possible for a jury to hear the evidence in the case, make findings of fact, correctly apply the law, and still, albeit unwittingly, assess damages that bear no reasonable relationship to the accomplishment of those goals. Justice Jones recognized this problem in his opinion concurring specially in Ridout's-Brown Service, Inc. v. Holloway, 397 So.2d 125, 127-28 (Ala.1981):
The following could be taken into consideration by the trial court in determining whether the jury award of punitive damages is excessive or inadequate:
Aetna Life Insurance Co. v. Lavoie, 505 So.2d 1050, 1062 (Ala.1987), Houston, J., concurring specially.
Evidence was presented to the trial court before it ruled on the Hammond remand. This included evidence of Green Oil Company's and the partners' worth. Thereafter, the trial court found that the punitive damages award was excessive because of its effect upon Green Oil Company and the individual partners thereof. Thus, Green Oil Company overcame the presumption of correctness that attached to the jury's award of punitive damages. Therefore, the judgment against Green Oil Company in the amount of $39,704.06 plus one-half of the costs and the judgment against the Hornsbys in the amount of $2,000 are affirmed.
TORBERT, C.J., and JONES, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
ALMON, J., concurs in the result.
MADDOX, Justice (concurring specially).
I agree that the opinion correctly states the law on the factors that a trial judge may consider in reviewing a claim that a jury has awarded an excessive amount as punitive damages, but it does not address the question of what a jury can consider when determining the proper amount to award.
The United States Supreme Court will probably decide this term whether an award of punitive damages in a civil case is subject to the Eighth Amendment's "excessive fines" clause. Because the law regarding punitive damages awards is currently being reviewed by the Supreme Court of the United States, I thought it advisable to point out that I agree with the opinion's statement of law only as it applies to this particular case.