McAlister v. Patterson

3 Ky. Op. 377, 1869 Ky. LEXIS 436

• Court: Court of Appeals of Kentucky
• Decided: February 22, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

It was the province of the jury to decide, on which side the evidence preponderated, and this court is not disposed to interfere with their finding. But instructions Nos. 3 and 4 are erroneous and prejudicial to appellants and cannot, therefore, be sustained. By instruction No. 3 they are told that unless they believe from the evidence that the plaintiff contracted with the defendant to treat his eyes for ten dollars, they must find for the plaintiff the full amount of the account sued on, making the right of appellee to recover- depend alone upon their belief or non-belief of the existence of a contract to treat appellant’s eyes for $10, without regard to any proof of the value of services rendered, or attention given to appellant, it withdraws from the jury the consideration of any other -fact except whether there was a special contract to treat appellant’s eyes for $10, and if they find against him, they are to find the full amount of appellee’s account at all events. In the fourth instruction their attention is directed to the inqury whether they believed from the evidence that there was a special contract, and that it was subsequently by mutual consent abandoned, then without regard to proof of any attention rendered, services performed or value of either the whole amount of appellee’s account was to be their verdict. For restricting the inquiry to the isolated facts named in said instructions, the judgment is reversed, and the cause remanded, with directions to award a new trial and for further proceedings consistent herewith.

Anderson & Blount, for appellant. Boon & Anderson, Tice & Miller, for appellee.