Kress v. Lawrence

47 So. 574, 158 Ala. 652, 1908 Ala. LEXIS 600

• Court: Supreme Court of Alabama
• Decided: November 19, 1908
• Status: Published

Opinion

DOWDELL, J.

The complaint contained three counts. The first count went out on demurrer. Pleas of not guilty were filed to the second and third counts, on which issue was joined. The questions presented for our consideration and argued by counsel arose on exceptions taken by the defendants, appellants here, to the refusal of the court to give certain charges requested in writing by the defendants- and to the giving of certain charges requested by the plaintiff.

Charges 2 and 3, refused to the defendants, and which the defendants insist were erroneously refused, were bad in form, and for that reason, if no other, were prop* erly refused. — M. & O. R. R. Co. v. George, 94 Ala. 201, 10 South. 145; L. & N. R. R. Co. v. Sandlin, 125 Ala. 585, 28 South. 40; Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 South. 40; A. G. S. R. R. Co. v. Bonner (Ala.) 39 South. 619.

It was open to the jury, under the third count of the complaint, if they believed the evidence of the plaintiff, to assess punitive damages. Charge No. 2, given at the request of the plaintiff, correctly stated the law when referred to the third count and the evidence under that count. It was the right of the defendants, if they supposed it was of misleading tendency, to meet this by requesting an explanatory charge.

Charge No. 3, given for the plaintiff, we think, was not an invasion of the province of the jury. This charge does not assume as a fact on “arrest under a charge of embezzlement,” as counsel for appellants contend, but leaves this as a question for the jury. In the giving of this charge no reversible error was committed.

The sixth charge for the plaintiff was held good in Williamson Iron Co. v. McQueen. 144 Ala. 265, 40 South. 306. See, also, A. G. S. R. R. v. Frazier, 93 Ala. 51, 9 South. 303, 30 Am. St. Rep. 28, and Hale v. State, 122 Ala. 85, 26 South. 236.

Under the principle stated in Cobb v. Malone, 92 Ala. 630, 9 South. 738, we do not feel justified in reversing the ruling of the trial court on the motion for a new trial upon the ground that the verdict was contrary to the weight of the evidence. Nor are we prepared to say that the verdict was excessive, if the plaintiff’s evidence is to be believed, and manifestly the jury did believe it. There being no reversible'error,'the judgment is affirmed.

Affirmed.

• Tyson, C. J., and Anderson and McClellan, JJ concur.