Mann v. Darden

• Decision Date: 19 November 1912
• Citation: 60 So. 454,6 Ala.App. 555
• Parties: MANN v. DARDEN ET AL.
• Court: Alabama Court of Appeals

60 So. 454

6 Ala.App. 555

MANN v. DARDEN ET AL.

Court of Appeals of Alabama

November 19, 1912

Rehearing Denied Dec. 7, 1912.

Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge.

Action by T. J. Mann against John A. Darden and others for trespass and trover. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

For former proceedings in this cause see Darden et al. v Mann, 163 Ala. 297, 50 So. 1033, and Mann v. Darden et al., 171 Ala. 142, 54 So. 504.

The following charges were given at the request of the defendant (1) "I charge you, gentlemen of the jury, that the burden of proving a conspiracy among the defendants to defraud or cheat the plaintiff out of his horse rests upon the plaintiff, and this he is required to do before you can find against the defendant. He must make this proof to your reasonable satisfaction, from the evidence adduced before you on the witness stand. If plaintiff fails to so prove the conspiracy, your verdict must be for the defendant." (Z) "I charge you that you are to give the depositions of the defendant Phil Walker the same weight and credibility, in making your verdict in this case, as if he had testified to you from the witness stand."

Riddle Ellis, Riddle & Pruett, of Goodwater, for appellant.

George A. Sorrell, of Alexander City, and John A. Darden, of Goodwater, for appellees.

PELHAM, J.

This is the third appeal in this case. The other two appeals were considered by the Supreme Court before this court was established. Darden et al. v. Mann, 163 Ala. 297, 50 So. 1033; Mann v. Darden et al., 171 Ala. 142, 54 So. 504. The record in the case shows no change from the cases presented on the former appeals so far as the issues in the trial court are concerned. The suit is at the instance of the appellant against the appellees, is in trespass and trover, and proceeds upon the theory that the defendants fraudulently procured a stallion from the plaintiff by leading the plaintiff to believe that certain notes received in trade for the animal were valuable when in fact they were not; that by this fraud and deception, in which the defendants conspired against plaintiff, he was induced to part with his property for worthless notes given for patent "washing machine contracts."

As the case must be again reversed for errors presently discussed we will not treat in detail the several assignments of error based on the court's rulings on the evidence. But, for the benefit of the trial court on another trial, we call attention to the rule referred to by the Supreme Court, when the case was last before that court on appeal, of allowing great latitude to a party in the introduction of evidence when an issue of fraud is involved and a conspiracy relied upon. Some of the rulings on the evidence presented on this appeal approach very close, if they do not overreach, the line of showing reversible error because of a failure to observe this rule.

Charge Z, requested by the defendants, should not have been given. The Supreme Court in a number of cases has held that the weight and credibility to be given the testimony of a witness when testifying ore tenus is necessarily different from that given to it when in the form of written testimony. See Thompson v. Collier, 170 Ala. 469, 54 So. 493, citing several of these cases and reaffirming this rule. The data afforded the trial court or jury as triors of the facts by an observance of the witness when delivering his testimony ore tenus, gives an advantage in weighing the credibility of the statements...