On Rehearing
HARWOOD, Justice.In brief on application for rehearing counsel for appellant has expressed concern that “a reader of the opinion would be justified in a conclusion, that in a case of this seriousness and importance, depositions should have been taken farther in advance than three weeks before trial date.”
Counsel requests that we extend our opinion to show that the case was first referred to appellant’s Birmingham attorneys on 9 August 1962, who made an unsuccessful attempt to transfer the suit to the Federal Court. The case was remanded to the Circuit Court of Tuscaloosa County on 30 October 1962, and was referred for defense to its Tuscaloosa attorneys on 2 November 1962. Trial was begun on 3 December 1962.
While we think counsel’s apprehension in the premises is unwarranted, we are glad to accord to counsel’s request in the premises.
Particularly are we inclined to show the dates as requested in view of the careful, efficient, and competent manner in which *353counsel for appellant discharged their duties of representation. From the start of their representation counsel for appellant were confronted with the defense of a case to which there was no real defense either in law or on the facts. Their recommendations of settlement were not followed. The validity of their judgment in recommending repeatedly a settlement of the Brehm case is established by the $34,000 verdict. Nor can it be said that the verdict was not warranted nor to be reasonably expected in view of the negligence of the insured in the operation of his automobile and the severe damages resulting from his acts.
Counsel has reargued the previously asserted error growing out of appellee counsel’s opening statement, written to in our original opinion. We have read the additional cases cited by counsel in brief on rehearing. We are not persuaded that our original conclusions were incorrect in view of the situation of this case.
Further, it is to be remembered that the verdict returned by the jury in the Brehm suit was $24,000 in excess of what that suit could have been settled for, i. e., $10,000. Thus the appellee was saddled with a $24,-000 liability due to appellant’s negligence in refusing appellee’s offer of settlement. Under the facts and legal principles governing, the appellant was liable to appellee for this amount.
The appellee saw fit to claim damages of only $9,999 in the present excess verdict suit. This was in the province of appellee. Although the jury awarded the appellee the full amount of damages claimed, it is difficult to see that such award was not just in view of appellant’s much larger liability.
The lower court in overruling the motion for a new trial thereby indicated its approval of the verdict as being proper. Certainly the evidence fully sustained the damages awarded.
As stated in Alabama Great Southern R. Co. v. Gambrell, 262 Ala. 290, 78 So.2d 619:
“If this be true, should we disregard the rights of the parties to the cause? The fact that the verdict is not unjust is a material if not a decisive factor in determining whether the new trial should be granted. Alabama Power Co. v. Bowers, [252 Ala. 49, 39 So.2d 402;] American Railway Express Co. v. Reid, 216 Ala. 479, 113 So. 507; Mobile Light & R. Co. v. Gallasch, 210 Ala. 219, 97 So. 733.”
See also to same effect Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So.2d 110.
Opinion extended; application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.