On the original hearing the opinion of the majority was grounded on the principle of rescission stated generally in U.S. Cast I. P. F. Co. v. Marler, 204 Ala. 342, 86 So. 108; B. R., L. P. Co. v. Jordan, 170 Ala. 530, 54 So. 280; Rabitte v. A. G. S. R. Co., 158 Ala. 431, 47 So. 573; Harrison v. Alabama Midland R. Co., 144 Ala. 246, 40 So. 394, 6 Ann. Cas. 804; Stephenson v. Allison, 123 Ala. 439,26 So. 290. An examination of these authorities discloses a rescission between the original parties to the contract or release alleged to have been procured by fraud.
In U.S. Cast I. P. F. Co. v. Marler, supra, an injured employé had been induced by fraud to sign a release for a consideration; and in B. R., L. P. Co. v. Jordan, supra, the suit was by a passenger for injuries received in transportation. There were pleas of accord and satisfaction, to which was the reply that the release signed was materially misrepresented by the person acting on behalf of defendant in procuring plaintiff's signature thereto. Held, that such a one who would disaffirm a fraudulent contract must return whatever has been received under it, and the rule prevails in courts of law as well as equity, etc. Such was the case in Rabitte v. A. G. S. R. Co., supra.
The suit in Harrison v. Alabama Midland R. Co., supra, was for damages for personal injuries sustained in a wreck of a passenger train while in defendant's employ and by reason of alleged defects in the ways, works, etc., of defendant. Defendant's pleas as amended averred a compromise and settlement with plaintiff for his damage for the amount stated in the release exhibited. Replications to such special pleas were challenged by demurrer that was sustained on the ground that it is not denied in the replication that plaintiff knew, some time after he signed the release, what the provisions were; and there is no averment that he returned or offered to return the sum alleged to have been paid, etc. Held, without error. Excerpts from Stephenson v. Allison, supra, that were quoted with approval were to the effect that, if the party defrauded would disaffirm the contract, he must do so at the earliest moment after discovery of the fraud, and "must return whatever he has received from it." The Stephenson Case was a bill for rescission and cancellation (on ground of fraud as to its consideration) of a mortgage executed by complainant to respondent.
The foregoing decisions are rested on Dill v. Camp, 22 Ala. 249; Barnett v. Stanton, 2 Ala. 181, 195; Masson v. Bovet, 1 Denio (N.Y.) 69, 43 Am. Dec. 651, and notes. The Dill-Camp Case was an action of assumpsit on a written contract for the hire of slaves for a sum in gross of $125.50 by the payee therein. The contract price was sought to be avoided or abated by the maker of the note *Page 28 for the reason that the slaves did not efficiently discharge the service for which they were employed. Under such pleading was discussed the law of rescission and placing of the other party in statu quo, if possible. The Barnett-Stanton Case was a suit on promissory notes for the purchase of ready-made clothing by the payee against the maker. No pleas are disclosed, and the case was tried by the jury "as on issue joined." There was testimony that the pieces of clothing did not correspond with the marks on them; the disagreement being such as to amount to a fraud on the purchaser. The Chief Justice discussed the nature of contracts for the sale of personal chattel where procured by fraud and the duty of the party rescinding (1) where circumstances have been altered by a past execution, and (2) where the parties can be put in statu quo. The cases of King v. Livingston Mfg. Co., 192 Ala. 269,68 So. 897, and Consumers' C. F. Co. v. Yarbrough, 194 Ala. 482,69 So. 897, were in equity; and that of Lowe v. Shinault, 201 Ala. 593, 79 So. 22, was at law. Each of the foregoing cases was that of rescission between the original parties to the contract or written release.
In the Masson-Bovet Case, supra, reported in 1 Denio (N.Y.) 69, 43 Am. Dec. 651, a party had been induced to part with property on a fraudulent contract. There was rescission and an effort to recover his property on discovering the fraud by an appropriate and seasonable action. It was declared that the election of the party to rescind a contract for fraud must be exercised at the earliest practicable moment after discovering the fraud; and the party rescinding must return what he has received on it, or offer to do so; but, if the nature of the transaction is such as the status quo cannot be restored, the party rescinding is not required to put the other party in the same situation in which he was before the contract. The justice said:
"A person who is induced to part with his property on a fraudulent contract may, on discovering the fraud, avoid the contract and claim a return of what has been advanced upon it. Fraud destroys the contract ab initio, and the fraudulent purchaser has no title: Chit. on Con. 406, 678-681, Am. Ed. of 1842. * * * The party who would disaffirm a fraudulent contract must return whatever he has received upon it. This is on a plain and just principle. He cannot hold on to such part of the contract as may be desirable on his part, and avoid the residue, but must rescind in toto, if at all.
Other Alabama decisions cited are Beatty v. Palmer, 196 Ala. 67,71 So. 422, where there was discussion of a timely rescission of the contract of release for mental disability after discovery of the alleged settlement and tender of the amount paid defendant at the time of the execution of the release. So of Kelly v. L. N. R. Co., 154 Ala. 573, 45 So. 906, and Wright v. Waller, 127 Ala. 557, 29 So. 57, 54 L.R.A. 440, avoidance of contracts or releases because of incapacity by drunkenness, etc. In Jones v. Anderson, 82 Ala. 302,2 So. 911, the suit was statutory detinue for oxen, etc., after breach or nonperformance of contract touching the possession. The court declared that on a sale of personal property procured by fraud the defrauded party may rescind within a reasonable time after the discovery of the fraud; that vendor could not rescind and retake the property sold without returning or offering to return the purchaser's written obligation for the price.
With this understanding of the foregoing authorities, I am of opinion that they are not decisive of the question presented by the overruling of demurrers to plaintiff's replications. The charge, to which there are amended replications, was twofold: (1) The fraudulent procurement of the letters of administration by and to Brown by and with defendant's agents charged to have had a full knowledge of plaintiff's rights in the premises as the wife of decedent, and the issue of which letters was for the purpose of defrauding plaintiff as distributee; and (2) the fraudulent settlement by defendant with said Brown as administrator as affecting and defeating plaintiff's said rights as distributee, which were well known to defendant's agent acting for it in the matter of the payment of the $500 to Brown as administrator, etc. Of this it is averred in the replication as amended that:
"The sum paid D. B. Brown for the fraudulent release pleaded by the defendant was grossly inadequate and for an amount which does not even proximately reasonably compensate the estate of the said Albert Brown for his said wrongful death, as alleged in the complaint, and * * * that the settlement of said cause for such grossly inadequate amount with the said D. B. Brown was the result sought to be attained by the said servant and agent of the defendant as before alleged in the perpetration of the scheme as a part of which the said D. B. Brown was appointed administrator by the false representations hereinbefore set out; * * * that she has not received from the said D. B. Brown the sum of $500, nor any part thereof, nor has she at any time in any way whatsoever ratified the said settlement; and that she has constantly opposed the settlement for such a grossly inadequate amount, and that she is now opposing such alleged settlement."
The fraud charged to defendant's agents, having full knowledge of plaintiff's right in the premises, from and before the grant of first letters to the written release by first administrator of plaintiff's damage, is different from that charged in the several replications or pleadings on which was rested the foregoing decisions. Under the facts averred in *Page 29 said replications supporting the complaint, and in answer to pleas of accord and satisfaction with Brown as administrator, etc., desiring to disaffirm such settlement on the grounds of "fraud and insufficiency of amount," the plaintiff was not required to do more than take appropriate and timely action of disaffirmance in the probate court (which was done within 40 days of the death of decedent), looking to the revocation of the letters of administration to Brown and the issuance of same to her, and, after her appointment as such personal representative, duly prosecuted her claims to judgment in her representative capacity for her benefit as an individual clothed with the statutory right of distributee. If she had demanded the $500 of Dave Brown, or proceeded by appropriate action to compel its payment by him as administrator or by his surety, such action would have been a ratification of the fraud pleaded — procurement of letters in the first instance and of the settlement with defendant. Garrett v. Harrison, 201 Ala. 186,77 So. 712.
Under the facts averred in her replications as amended, plaintiff was not required to return the $500 paid by defendant to Brown as administrator, or to make a due tender of such sum before maintenance of her suit to judgment. And the facts as averred are sufficient answer to defendant's pleas.
There are authorities supporting the insistence of appellee's counsel that succeeding personal representatives (administrators) are not bound or prejudiced by the acts of their predecessors in representative capacity when such acts are tainted with fraud. Waring v. Lewis, 53 Ala. 615, 628; Masterson v. Pullen, 62 Ala. 145, 153; Martin v. Ellerbe's Adm'r, 70 Ala. 326, 340; Butler v. Gazzam, 81 Ala. 491,1 So. 16; Logan, Adm'r, v. Central I. C. Co., 139 Ala. 548,556, 36 So. 729; Carr v. Illinois Central R. Co., 180 Ala. 159,165, 60 So. 277, 43 L.R.A. (N.S.) 634; Bishop v. Big Sandy Lbr. Co., 199 Ala. 463, 74 So. 931.
On further consideration of the record, the respective briefs of counsel, and the reasons stated by Mr. Justice Sayre, I am in accord with the view he expresses that there was no error in overruling demurrer to said replications.
The complaint on which the trial was had, consisting of one count under the first subdivision of section 3910 of the Code of 1907, alleged that plaintiff's intestate was killed while at work for defendant, by reason of a defective roof in a mine.
Appellee's counsel argues that, according to the American tables of mortality, if the life of said intestate had been computed on the basis of one-half of his earning capacity, it would have been worth to his widow a larger sum than that awarded by the jury. Does the evidence disclose material facts on which a jury may base such finding? In an action under this statute by an administrator for damages caused by the wrongful death of an employé, the damages recoverable are compensatory. In such case the rule of admeasurement has been stated to be that which gives such a sum as, being put to interest at the rate of 8 per cent. per annum, will each year, by taking a part of the principal and adding it to that interest, yield the amount of deceased's yearly contribution to his family or dependent, less his personal expenses, so that the whole remaining principal at the end of deceased's expectancy of life, added to the interest on this balance of the principal for the year, will equal the amount of his yearly contribution to his family or dependent. Reiter-Connolly Mfg. Co. v. Hamlin,144 Ala. 192, 40 So. 280; Thomas Furnace Co. v. Carroll,204 Ala. 263, 267, 85 So. 455; L. N. v. Orr, 91 Ala. 548, 553,8 So. 360; James v. Richmond Danville R. Co., 92 Ala. 231,236, 9 So. 335; L. N. v. Fleming, 194 Ala. 51, 58,69 So. 125; L. N. v. Porter, 205 Ala. 131, 87 So. 288,293.
Though there is a locus pœnitentiæ within the statutory period of two years for the husband or wife at fault in voluntary abandonment of the other (Pentecost v. Pentecost,204 Ala. 152, 85 So. 374), the question for decision, however, is not alone one of abandonment or repentence within two years of abandonment vel non (Brown v. Brown, 204 Ala. 157,85 So. 439), but is also that of contribution on the part of the husband to the wife or dependent, and of accumulation pursuant to the rule announced by this court. A careful examination of the record fails to disclose the facts necessary on which to justify a verdict of $5,000. The evidence shows that for nearly two years (from November 15, 1917, to July 28, 1919) preceding his death decedent spent all his earnings on himself and did not contribute anything to the wife during the period of her residence with her parents in Cincinnati, Ohio. Though the evidence shows him to have been about 26 years of age, in good health, working regularly, earning $2.20 per day when the wife went away, and that he spent it on his family, and earning $3.50 at the time of his death, yet it does not sufficiently show his yearly earnings and savings at the time of his death or immediately preceding, or that he made contribution to the wife or dependent after she had left the state; that is to say, the evidence fails sufficiently to disclose his habits of economy, net income, or contribution to the support of his wife immediately preceding his death or within a reasonable period antedating the same as required by the unbroken rule of this court. James v. Richmond Danville, supra; McAdory v. L. N. R. Co., 94 Ala. 272, 276, 10 So. 507. *Page 30
Nor is this supplied in the instant case by the presumption of dependency. Under some circumstances the presumption of dependency and of pecuniary loss to a relation or dependent may arise (L.R.A. 1918C, 1062) from the duty of the husband and father (generally) to support his wife and children. When financial ability, habit of industry, and economy are shown, ordinarily the law presumes that this duty "is discharged until overcome by evidence." Malott v. Shimer, 153 Ind. 35,54 N.E. 101, 74 Am. St. Rep. 278. If such presumption is not rebutted, there may be a case in which it would be sufficiently strong to sustain a verdict for more than a nominal amount. When, however, a wife leaves and remains away from the domicile of her husband, becoming wholly dependent upon others in another state for the period of about two years, is not dependent on the husband, and receives no support from him for that time, and no saving or contribution is shown, the deceased husband having spent all of his earnings on himself, the "presumptive benefit from his continued existence" is rebutted; that is to say, when the evidence is sufficient to overcome the presumption of dependency which arises from relationship, the presumption of pecuniary loss passes. Bromley v. B. M. R. Co.,95 Ala. 397, 406, 11 So. 341; A. M. R. R. Co. v. Jones,114 Ala. 519, 533, 21 So. 507, 62 Am. St. Rep. 121; Cahaba, etc., Co. v. Pratt, Adm'r, 146 Ala. 245, 40 So. 943. The rule fails when the reason therefor ceases. Hodge v. Joy (Ala. Sup.) 92 So. 171;1 L. N. v. Abernathy, 197 Ala. 512,73 So. 103; Bank v. Planett's Adm'r, 37 Ala. 222, 226; Bell v. Reynolds, 78 Ala. 511, 513, 56 Am. Rep. 52.
Though the plaintiff as a witness testified to the fact that she intended to return to her husband, that they corresponded, and that she thought he would come to her in Ohio, where he sent her, this evidence raised no conflict with her acts in remaining away from the husband, independent of his support for the time and under the circumstances indicated, and wholly dependent upon her parents for support, and her admission that she did not go to Cincinnati to return. This state of the evidence was within the rule announced by Mr. Justice Somerville that "where a witness states an opinion or conclusion which is irreconcilably opposed to the stated facts upon which it is founded, the opinion or conclusion is a testimonial nonentity and raises no conflict with the stated facts" (Hicks v. Burgess, 185 Ala. 584, 587, 64 So. 290,292), and that followed in Stockburger Bros. v. Aderholt,195 Ala. 56, 58, 70 So. 157, where Mr. Justice Gardner adverts to a like condition of evidence, and in Cincinnati Co. v. Vredenburgh S. M. Co., 13 Ala. App. 442, 445, 69 So. 228.
As has been indicated, if the presumption of dependence is overthrown, pecuniary loss based on such presumption does not exist. And the only way for avoiding the conclusion that plaintiff could recover more than nominal damages is in the proof of facts which showed the relationship of dependency and the response thereto on the husband's part, or by accumulations, etc., as per the rule of James v. Richmond Danville, supra; L. N. R. Co. v. Jones, Adm'r, 130 Ala. 456,473, 30 So. 586. The reason for the rule of presumption of dependence does not exist in the face of facts of independence which rebut that presumption and that of pecuniary loss, when no saving or probable future estate is shown as of the time of, or reasonably precedent to, the death of plaintiff's intestate, not including any income derived from property, investments, or employment of capital. McAdory v. L. N. R. Co., supra,94 Ala. 275, 10 So. 507; Bromley's Case, 95 Ala. 397, 11 So. 341; L. N. R. Co. v. Morris, 179 Ala. 239, 60 So. 933; L. N. v. Carter, 195 Ala. 382, 70 So. 655, Ann. Cas. 1917E, 292; C. O. v. Kelly, 241 U.S. 485, 36 Sup. Ct. 630,60 L.Ed. 1117, L.R.A. 1917F, 367; L. R A. 1916C, 838; L.R.A. 1917F, 373; L.R.A. 1918C, 1062, 1082. That is to say, there is no sufficient data furnished by the evidence for determining compensation to be allowed the person designated as beneficiary (the child having died before or after she went to Ohio) for her pecuniary loss, immediate and prospective; and, in so far as the loss is prospective, the gross amount thereof to be determined must be reduced to its present worth. L. N. R. Co. v. Morris, supra; L. N. R. Co. v. Jones, supra; Ala. Min. v. Jones, 114 Ala. 519, 21 So. 507, 62 Am. St. Rep. 121; McAdory v. L. N. R. Co., supra; L. N. R. Co. v. Trammell,93 Ala. 350, 354, 9 So. 870; L. N. R. Co. v. Orr, 91 Ala. 548,8 So. 360; James v. R. R. Co., supra, 92 Ala. 236,9 So. 335.
Is there a conflict of authority in this state by reason of the announcements contained in Tutwiler Co. v. Enslen, Adm'r,129 Ala. 336, 343, 30 So. 600, and Woodstock Iron Works v. Kline, Adm'r, 149 Ala. 391, 402, 43 So. 362? In Tutwiler Co. v. Enslen, supra, recovery was sought by an administrator when the earnings of the deceased minor would not benefit the estate of the beneficiary, the father. L.R.A. 1918C, 1082. Mr. Justice Haralson announced on the authority of James v. Richmond Danville R. Co., 92 Ala. 231, 9 So. 335, that "it is only when the intestate has no distributees that nominal damages only could be given." A careful consideration of the James Case, supra, discloses that the learned Chief Justice announced that only nominal damages can be given where the deceased was not survived by a designated statutory beneficiary. The *Page 31 announcement by Judge Haralson was the broader; and he adhered to his interpretation of the James Case by carrying the same expression into Woodstock Iron Works v. Kline, supra. On the instant question said two cases have not since been cited in this jurisdiction. No intention of modifying or overruling James v. Richmond Danville R. Co. is shown; on the contrary, it is cited as authority for the announcement made in each of aforesaid cases. Manifestly, we think, the language quoted from the Tutwiler Co. and Woodstock Iron Works Cases, supra, means no more than that the recovery cannot be restricted to nominal damages, as a matter of law except when there are no distributees. It did not mean to assert that substantial damages could be given in any case, even where a distributee existed, without proof of loss to him and sufficient data for its estimation.
And to a better understanding of this announcement by Judge Haralson, we may note that the right of recovery of damages for the wrongful death or the negligent killing of a human being is dependent on statute, since at common law the death of a person precludes recovery for injury to his person even though death resulted from such injury. To meet this situation Lord Campbell's Act (9 10 Victoria, August 26, 1846, 86 Stat. at Large, p. 531, C. A. P. XCIII) and other subsequent and similar statutes provided that, when a person is killed under such circumstances as would have entitled such decedent to recover for injury had he survived, certain designated relatives (by consanguinity or affinity) or the personal representative of the deceased, in behalf of such relatives, are authorized to maintain an action based on such injury, and recover the pecuniary loss suffered by reason of such injury. From the earlier statutes came the statutes of the several states having application to this subject.
Even though the statutes designated the persons entitled to share in the fund recovered, the personal representative of decedent's estate is the nominal plaintiff. Tutwiler Co. v. Enslen, supra; M. J. K. C. v. Bromberg, 141 Ala. 258,37 So. 395; Woodstock Iron Works v. Kline, supra; Birmingham v. Crane, 175 Ala. 90, 56 So. 723; Hull v. Wimberly Co.,178 Ala. 538, 59 So. 568; Stewart v. L. N. R. Co., 83 Ala. 493,4 So. 373; C. W. R. Co. v. Bradford, 86 Ala. 574,6 So. 90.
Our court has construed the statute of this character as authorizing an action in all cases where the injury was caused under such circumstances as that the injured person was entitled to maintain an action to recover for an injury to his person had he survived, and a nominal recovery in behalf of the personal representative may be had upon such showing alone. A careful consideration of the cases shows a general agreement that, in order to recover substantial damages, it must be made to appear that the deceased was survived by "some of the designated beneficiaries, who suffered a pecuniary loss by his death." L.R.A. 1916E, 138. And where, under the statute, recovery is restricted to pecuniary loss of the beneficiary, if substantial damages are to be recovered, it is necessary to prove: (1) The existence of a beneficiary within the statutory description; it is not necessary to be averred (C. W. R. Co. v. Bradford, supra; Woodstock Iron Works v. Kline, supra); (2) that such beneficiary suffered a pecuniary loss for the death of which complaint is made by the suit; and (3) that sufficient data be given that its present value may be determined, reduced to its present worth. C. of Ga. v. Alexander, 144 Ala. 257,40 So. 424; James v. Richmond Danville R. Co., supra; Cahaba Co. v. Pratt, 146 Ala. 245, 40 So. 943.
Our statute is similar to Lord Campbell's Act. M. B. v. Holborn, 84 Ala. 133, 4 So. 146; B. R. E. Co. v. Allen,99 Ala. 359, 13 So. 8, 20 L.R.A. 457. In James v. Richmond Danville R. Co., supra, the learned Chief Justice quoted from the English statute the expression:
"* * * The jury may give such damages as they may think proportioned to the injury, resulting from such death, to the parties respectively for whom and for whose benefit such action shall be brought."
Judge Stone said:
"This statute expressly directs the inquiry of damages, not to the injury, suffering, or loss sustained by the deceased in the loss of life, but confines it to the injury suffered by the parties for whose benefit the suit is brought, namely, 'the wife, husband, parent, child' of the deceased, as the case may be. This precludes all inquiry of physical or mental suffering and all compensation therefor. It does more. It denies all right to recover substantial damages, unless there is some person in being, who falls within some of the classes for whose benefit the suit is prosecuted, and who will or may suffer injury from the death of the deceased. Blake v. Midland Railway Co., 18 Q. B. 93."
And, "conforming to the convictions" of the other judges, it was held:
"That only the estimated, actual money value of the life, based on proven data, can be recovered, with no allowance for physical pain or mental anguish suffered by the deceased, or solatium to the survivors, on account of the bereavement. It would follow from this that, to authorize recovery of substantial damages, when the suit is by the personal representative, there must be some person or persons filling the relation of next of kin entitled to inherit 'according to the statute of distributions.' "
He concludes a discussion of the subject of damages with the well-known quotation from *Page 32 L. N. R. Co. v. Orr, 91 Ala. 548, 8 So. 360:
"The jury have no arbitrary discretion to give as damages what they may see proper, without reference to a proper basis from which to estimate them. That the jury may have proper data from which a pecuniary compensation may be fixed, it is proper to admit evidence of the age, probable duration of life, habits of industry, means, business, earnings, health, skill of the deceased, reasonable future expectations; and perhaps there are other facts which would exert a just influence in determining the pecuniary damage sustained."
And:
"All this we reaffirm and add that net income and habits of economy should enter into the account, as factors — important factors — in the ascertainment of accumulating capacity."
The right of the personal representative to recover at least nominal damages, where the deceased did not leave surviving him beneficiaries who suffered a pecuniary loss by his death, is grounded on the assumption of the statute that every person is of some relative value to others (Oldfield v. N.Y. Co.,14 N.Y. 310, 314; Morris v. Metropolitan S. Ry. Co., 51 App. Div. 512,64 N.Y. Supp. 878, 880; Medinger v. R. R. Co., 6 App. Div. 42,39 N.Y. Supp. 613; Quincy Coal Co. v. Hood, 77 Ill. 68; Johnston v. Cleveland Co., 7 Ohio St. 336; Quin v. Moore,15 N.Y. 432), and the conditions upon which depends the right of the administrator of a person wrongfully killed to sue under the statute "is the common-law right of the injured person to maintain an action if he were living" (Oldfield v. N.Y. Co, supra); and when this condition exists the presumption obtains that beneficiaries sustain at least nominal damages (L.R.A. 1916E, 140, 142, 192); and therefore, to sustain the action for nominal damages, proof of actual pecuniary loss is not required. Such proof is only necessary to recover and sustain substantial damages. Ala. Mineral R. Co. v. Jones, 121 Ala. 113,119, 25 So. 814; L.R.A. 1916E, 140, note. The action in this state is based on a statute providing that, if personal injury results in death, the personal representative may maintain the action therefor, the damages recoverable not being subject to debts of the deceased, and shall be distributed according to the statutes of descent and distribution. Kuykendall v. Edmondson (Ala.) 87 So. 882.2 Pecuniary loss need not be shown to authorize nominal damages. That is, the statute of this state authorizes a recovery of damages for the negligent killing of a human being, without limiting that recovery to pecuniary loss of the beneficiary, the showing of pecuniary loss to the statutory beneficiary is not essential to the right of action, and the doctrine of nominal damages has application. James v. Richmond Danville R. Co., 92 Ala. 231,9 So. 335; L.R.A. 1916E, 142, note. I am of the opinion that only nominal damages may be recovered. C. of Ga. v. Alexander, supra; T. C. I. R. Co. v. Herndon, 100 Ala. 451,14 So. 287; Alabama Mineral R. Co. v. Jones, supra; Bromley v. Birmingham Mineral R. Co., supra; B. R., L. P. Co. v. Mosely, 164 Ala. 111, 51 So. 424; L.R.A. 1916E, 139, 154; L.R.A. 1918C, 1128. Therefore I dissent from the view announced by the majority, affirming the judgment conditionally.
SOMERVILLE, J., concurs in the foregoing.
McCLELLAN, J., concurs in the view that in the state of this evidence only nominal damages may be recovered, to the extent indicated in his separate opinion.
1 Post, p. 198.
2 205 Ala. 265.