Gunthorpe v. State
Citation | 171 So.2d 842,277 Ala. 452 |
Decision Date | 21 January 1965 |
Docket Number | 1 Div. 223 |
Parties | Frederick D. GUNTHORPE, Jr., Et al., v. STATE of Alabama. |
Court | Alabama Supreme Court |
Bert S. Nettles, Johnston, Johnston & Nettles, Mobile, for appellants.
Harry D. Hardy, Sp. Asst. Atty. Gen., for appellee.
This is an appeal by landowners from a verdict and judgment in a condemnation case for highway purposes and from the order overruling the motion for a new trial. The appellant was awarded $15,000 by the commissioners in Probate Court and the State appealed to Circuit Court where the verdict was $12,500.
The argued assignments of error raise two questions, one, that the court erred in giving requested written charge 7 for the State; and two, the admission of evidence relating to sales of comparable lands.
Charge 7, given at the request of the State, reads:
Appellants contend that each of the sentences in the charge is erroneous and that the giving of one or both constituted reversible error. They argue that the first sentence is bad because it is a 'preponderance of the evidence' charge. Such charges may be refused without error, but it is not reversible error to give them. In Nelson v. Belcher Lumber Co., 232 Ala. 116, 166 So. 808, this court said:
The charge given in the Green case, supra, was: and this was held to be a proper charge.
Appellants further contend that the second sentence in the charge is erroneous because of the 'evenly balanced' test imposed. That contention is answered in Wilson Bros. v. Mobile & O. R. Co., 208 Ala. 581, 94 So. 721, where the following charge was given at the request of the defendant:
This court said:
We apply similar reasoning to the case cited by appellants, Jones v. Mullin, 251 Ala. 501, 38 So.2d 281. While the court pointed out that it was not the law that the issues had to be proved by a preponderance of the evidence, there were other points which constituted reversible error and we do not think the court meant to say that the giving of such a charge constituted reversible error.
Speaking of a similar charge in McCaa v. Thomas, 207 Ala. 211, 92 So. 404, we said, that if 'the charge was thought to be misleading, explanatory charges might have been requested,' under the rule that if a charge is deemed misleading, an explanatory charge should be requested, and the giving of a misleading charge does not necessitate a reversal. Russell...
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Smith v. Civil Service Bd. of City of Florence
...a greater burden on the plaintiff then is required and therefore is not the law, does not constitute reversible error. Gunthorpe v. State, 277 Ala. 452, 171 So.2d 842. Although given charge two does not require a reversal for the use of the term 'preponderance of evidence,' the use therein ......