Fairfax v. King

Alabama Court of Appeals

Fairfax v. King

107 So. 722, 21 Ala. App. 306, 1926 Ala. App. LEXIS 86

CourtAlabama Court of Appeals

DecidedMarch 23, 1926

Docket6 Div. 879.

StatusPublished

This text of 107 So. 722 (Fairfax v. King) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fairfax v. King, 107 So. 722, 21 Ala. App. 306, 1926 Ala. App. LEXIS 86 (Ala. Ct. App. 1926).

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Opinion

RICE, J.

Count 2 of the complaint, upon which the case was submitted to the jury, was not, we think, subject to any of the grounds of demurrer interposed. 21 R. C. L. p. 386; Id. p. 396.

Appellee’s testimony, given by herself, was to the effect that she made a contract with an agent of appellant, acting at the time for appellant and in his offices, whereby, for a consideration of $50, all her teeth were to be taken out and a plate made for her. Much was said in the testimony about this contract and the $50 consideration paid by appellee, which was never returned to her, etc. The action was ex delicto, and no claim was made for the return of the aforementioned $50. In this state of the case we think appellant was, under the authority and reasoning in Standard Oil Co. v. Davis, 94 So. 754, 208 Ala. 565, entitled to have given at his request written charge 7, and that its refusal was prejudicial error. As was said in the ease just cited:

“Where the case on trial has some element or elements in common with some other cause of action, so that confusion may arise in the minds of the jury as to the issues involved, an eliminative instruction [such, we may say, as appellant’s refused charge 7] may be insisted upon.”

It is clear here that the jury may have easily confused this action with, one that might have been brought for the return of the $50 by reason of the teeth made for appellee not “fitting,” as provided for in the contract testified to by her. See, also, Bradley v. Deaton, 94 So. 767, 208 Ala. 582.

The plaintiff below (appellee) relied upon the negligence of the defendant (appellant) for the recovery of the judgment which she had, and under the issues the burden was upon her to prove same. We have searched the record diligently, but cannot find any evidence to support her claim. If it be said, which we do not decide, that the mere fact that the teeth made for her did not “fit” raised a presumption of negligence in their making, or in the preparation of her mouth for same, yet, under the reasoning and authority of the opinion of the Supreme Court in the case of Lawson v. Mobile Electric Co., 85 So. 257, 204 Ala. 318, we think the appellant here was due to have given at his request the general affirmative charge, and its.refusal was error. Testimony offered in his behalf, showing the use of due care in the services performed for appellee, is without dispute, that we can discover, in the evidence.

For the errors indicated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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RICE, J.

Count 2 of the complaint, upon which the case was submitted to the jury, was not, we think, subject to any of the grounds of demurrer interposed. 21 R. C. L. p. 386; Id. p. 396.

Appellee’s testimony, given by herself, was to the effect that she made a contract with an agent of appellant, acting at the time for appellant and in his offices, whereby, for a consideration of $50, all her teeth were to be taken out and a plate made for her. Much was said in the testimony about this contract and the $50 consideration paid by appellee, which was never returned to her, etc. The action was ex delicto, and no claim was made for the return of the aforementioned $50. In this state of the case we think appellant was, under the authority and reasoning in Standard Oil Co. v. Davis, 94 So. 754, 208 Ala. 565, entitled to have given at his request written charge 7, and that its refusal was prejudicial error. As was said in the ease just cited:

“Where the case on trial has some element or elements in common with some other cause of action, so that confusion may arise in the minds of the jury as to the issues involved, an eliminative instruction [such, we may say, as appellant’s refused charge 7] may be insisted upon.”

It is clear here that the jury may have easily confused this action with, one that might have been brought for the return of the $50 by reason of the teeth made for appellee not “fitting,” as provided for in the contract testified to by her. See, also, Bradley v. Deaton, 94 So. 767, 208 Ala. 582.

The plaintiff below (appellee) relied upon the negligence of the defendant (appellant) for the recovery of the judgment which she had, and under the issues the burden was upon her to prove same. We have searched the record diligently, but cannot find any evidence to support her claim. If it be said, which we do not decide, that the mere fact that the teeth made for her did not “fit” raised a presumption of negligence in their making, or in the preparation of her mouth for same, yet, under the reasoning and authority of the opinion of the Supreme Court in the case of Lawson v. Mobile Electric Co., 85 So. 257, 204 Ala. 318, we think the appellant here was due to have given at his request the general affirmative charge, and its.refusal was error. Testimony offered in his behalf, showing the use of due care in the services performed for appellee, is without dispute, that we can discover, in the evidence.

For the errors indicated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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107 So. 722, 21 Ala. App. 306, 1926 Ala. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairfax-v-king-alactapp-1926.

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