Miller v. Bryant

151 So. 366, 150 So. 366, 227 Ala. 570, 1933 Ala. LEXIS 79

• Court: Supreme Court of Alabama
• Decided: December 1, 1933
• Docket: 7 Div. 224.
• Status: Published

Opinion

GARDNER, Justice.

The opinion of the Court of Appeals clearly discloses that, even if error be conceded, no possible injury resulted to petitioner by the testimony as to the record of the mortgage executed by the defendants, S. J. and Polk Miller, to Pollock Chevrolet Company. It therefore becomes unnecessary for this court to express an opinion upon the matter of concession of error as stated by the Court of Appeals, or to enter into a consideration thereof.

As to refused charge 8, it may be conceded that, strictly speaking, the charge was correct. Keyser v. Maas & Schwarz, 111 Ala. 390, 21 So. 346; Birmingham Trust & Savings Co. v. Acacia Mutual Life Ass’n, 221 Ala. 561, 130 So. 327; Harris v. Wright, 225 Ala. 627, 144 So. 834; Collins Baking Co. v. Savage, ante, p. 408, 150 So. 336.

But a discussion of the matter of burden of proof in the three latter cases demonstrates that, broadly speaking, the term “burden of proof” has two distinct meanings, more clearly pointed out in the Birmingham Trust & Savings Co. Case, supra, with quotation from 10 R. C. L. page 897, and needs no restatement here. Having two meanings as applicable to a ease of this character, manifestly the refused charge needed explanation, or at least some amplification. As written, it was therefore misleading, and properly refused as ruled by the Court of Appeals.

Other matters in the opinion have been considered, but a discussion thereof deemed unnecessary.

It results the writ must be denied.

Writ denied.

ANDERSON, C. J., and BOÜLDIN and FOSTER, JJ., concur.