Summary
In Monte v. Narramore (January, 1918) 201 Ala. 200, 77 So. 726, charge 9 used the words "in doubt or in a state of confusion," and concluded with the instruction "they cannot find a verdict for plaintiff"; held, by the use of the word "doubt," though coupled in the alternative with "confusion," it "placed too high a degree of proof upon the plaintiff."
Summary of this case from Boyette v. BradleyOpinion
6 Div. 564.
January 17, 1918.
Appeal from Circuit Court, Jefferson County; C. W. Ferguson, Judge.
John W. Altman, of Birmingham, and Perry Mims, of Bessemer, for appellant. Harsh, Harsh Harsh, of Birmingham, for appellee.
There was jury and verdict for the defendant, whereupon the plaintiff moved for a new trial, which was granted by the trial court, and defendant prosecutes this appeal from the action of the trial court in granting plaintiff's said motion for a new trial.
It is sufficient to say, in justification of the action of the trial court in granting the new trial, that it committed reversible error in giving the defendant's requested charges as embodied in grounds 9 and 10 of the motion for new trial. By use of the word "doubt," whether coupled with "confusion" in the alternative or not, they placed too high a degree of proof upon the plaintiff. In the case of A. G. S. R. R. Co. v. Robinson, 183 Ala. 265, 62 So. 813, we held, after reviewing the authorities, that charges predicated upon "doubt" or "uncertainty," one or both, are incorrect, and should be refused. We also suggested that charges using the word "confusion" could well be refused, but declined to hold that the giving of charges of the last character would amount to reversible error. Since the Robinson Case, supra, we have declined to reverse a case for the giving of a charge using the word "confused" or "confusion." But we have found no justification for giving charges like the ones in the case at bar, and think that the trial court erred in giving same, and properly corrected the error by granting the new trial.
The suggestion that this error was cured or neutralized by the oral charge and plaintiff's given charges finds no support in the previous decisions of this court or in Acts of 1915, p. 815. Said statute relates to refused charges, though correct, which were in principle and effect covered either by the general charge or special given charges, and it has no application to charges erroneously given at the request of a party to the cause.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and GARDNER, JJ., concur.