Callaway & Truitt v. Gay

• Decision Date: 18 May 1905
• Citation: 143 Ala. 524,39 So. 277
• Parties: CALLAWAY & TRUITT v. GAY.
• Court: Alabama Supreme Court

39 So. 277

143 Ala. 524

CALLAWAY & TRUITT v. GAY.

Supreme Court of Alabama

May 18, 1905

Appeal from Circuit Court, Lee County; A. A. Evans, Judge.

"To be officially reported."

Action by J. F. Gay against Callaway & Truitt on the common counts for work, labor, and services. From a judgment in favor of plaintiff, defendants appeal. Reversed.

The court at the request of the defendants gave to the jury seven written charges. In reference to these charges, the bill of exceptions contains the following recitals: "As soon as defendants' attorney had finished reading said charges to the jury, the presiding judge asked him to hand these charges to the court, whereupon the presiding judge took said charges and read the charge numbered 1 to the jury, which was as follows: 'The burden of proof is on the plaintiff to satisfy the jury to their reasonable satisfaction, by a preponderance of the testimony, that the defendant agreed to pay him a salary from and after April, 1902; and, if the plaintiff has failed to carry this burden, or if the evidence is equally balanced on this proposition, they must find for the defendant.' The court then said: 'That means nothing more nor less than the court has already charged you. It simply means this: That from the evidence in this case you must be reasonably satisfied that there was a contract of salary from April, 1902. That is all that it means. If you believe that from the evidence in this case, you must find for the plaintiff; if you do not believe it, you you must find for the defendant. * * * Now, as to these charges which say that the two minds must come together: That is the law. They must have understood it that defendants were to pay plaintiff a salary, and both parties must have understood it and also that defendants were to pay plaintiff's traveling expenses. If they both understood that, and the amount of it, that was a contract. The evidence for the plaintiff in this case tends to show that Mr. Callaway and Mr. Gay made a contract by which defendants were to pay plaintiff $75 per month salary. Well, if they had an understanding that defendants were to pay plaintiff $75 a month and his traveling expenses, and both sides understood it, that was sufficient to make a contract,' " etc. To the action of the court in taking said charges and commenting upon them to the jury the defendant duly excepted.

George P. Harrison, for appellant.

Sanford & Bridges, for appellee.

DENSON J.

The plaintiff, while testifying as a witness for himself, was shown by his attorney a statement of an account between himself and the defendants, which statement was shown to have been made out by the plaintiff. After the plaintiff had examined the statement, he was asked by his attorney if the statement of the account was correct. The question was objected to. The objection was overruled. The bill of exceptions then recites that "plaintiff's attorney then calling attention to the balance shown by the said statement to be due plaintiff, to wit, $251.25, offered said statement of account in evidence." Against the objection of the defendants the court allowed the statement of the account to go to the jury as evidence. It will be noted that the witness did not answer the question as to whether or not the statement of the account was correct, nor is it shown by the bill of exceptions that any response was made by the witness to his attorney when the attention was called to the amount of balance due by the statement to plaintiff. In this state of the case it is manifest that the court erred in admitting the statement of the account as evidence. Rice v. Schloss & Khan, 90 Ala. 416, 7 So. 802; L. & N R. R. Co. v. Cassibry, 109 Ala. 697, 19 So. 900; Lane v. May & Thomas Hardware Co., 121 Ala. 296, 25 So. 809.

But the appellee insists that, inasmuch as the bill of exceptions does not contain all the evidence, nor purport to set out all the evidence, this court will, on appeal, presume that there was evidence to justify all the rulings of the trial court. The above is a true statement of the rule with respect to the rulings of the court in the giving or refusal of charges or findings by the court. Sanders v. Steen, 128 Ala 633, 29 So. 586, and authorities there cited. But rule 33, p 1201, Code 1896, which relates to the mode of framing bills of exceptions, does not require nor authorize the setting out of all the evidence in order to properly present for review the rulings of the trial court on the admissibility of evidence. And when rulings of the court on evidence are presented, and error is shown, the error raises the presumption of injury, and must work a reversal, unless the record clearly shows that no injury could have resulted. Frierson v. Frierson, 21 Ala. 549; Buford v. Gould, 35 Ala. 265; McCargo & Cordle v. Crutcher, 27 Ala. 171; Thomas v. DeGraffenreid, 27 Ala. 651; Lawson v. O'Rear, 7 Ala. 784. It follows that, unless we can say from the record in this case that no injury could have resulted from the admission of the statement of the account in evidence, the error of the court in admitting it must work a reversal. From a consideration of the statement, in connection with the recitals of the bill of exceptions, it seems to us that to say that no injury resulted in...