McHugh v. Harrison

Citation266 Ala. 138,94 So.2d 756
Decision Date25 April 1957
Docket Number2 Div. 376
CourtSupreme Court of Alabama
PartiesJulius McHUGH, as Executor, v. Eugene G. HARRISON.

Pitts & Pitts, Selma, for appellant.

Childers & Rountree, Selma, for appellee.

The following charges were refused to plaintiff:

'7. The Court charges the jury that if you are reasonably satisfied from the evidence in this case that the funds for the purchase of the automobile came from the funds of Mildred Harrison, then you should find the issues in favor of the plaintiff.

'8. The Court charges the jury that from the evidence in this case there is a presumption that the automobile involved in this case was the property of Mildred Harrison and the burden is upon the defendant to overcome this presumption of ownership.'

SIMPSON, Justice.

Suit in detinue by Julius McHugh as executor of the last will of Mildred McHugh Harrison, deceased, against Eugene G. Harrison, to recover an Oldsmobile automobile in possession of defendant. Defendant and testate were husband and wife, and they had two children. Plaintiff (executor) was the brother of the testate. By the terms of the will of Mrs. Harrison all her property was left to these children.

The plaintiff, appellant, rested his right of recovery on the claim that Mildred Harrison had purchased the automobile with her own personal funds; that she was the owner of the car; and that it was a part of her separate estate at her death; and that the said automobile was wrongfully detained by the defendant, appellee. In support of this claim, he introduced into evidence a bill of sale for the automobile made out to Mildred Harrison, and tax assessment forms and tag receipts also in the name of Mildred Harrison. His evidence went to show that Mildred Harrison had purchased the car with her own funds.

The appellee, on the other hand, testified that the automobile was purchased by his wife for him; that he owned the car; and that it was purchased with funds owned jointly by himself and his wife. the testate. A witness for appellee also testified that appellee owned the car. Testimony for the appellee was somewhat limited in scope because of the 'Dead Man's' statute. The jury's verdict was for the defendant, and the plaintiff appeals.

The lower court refused the plaintiff's request for the affirmative charge and overruled the plaintiff's motion for a new trial. These two rulings are assigned as error.

Keeping in mind the prevailing scintilla rule, we think it clear that the affirmative charge for the plaintiff was well refused. What we have above mentioned shows that there was some evidence which supported the claim of the defendant. 18A Alabama Digest, Trials, k139(1) (g., h.).

So also do we entertain the view that a reversal cannot be rested on the ruling of the trial court in refusing to grant the plaintiff a new trial on the ground that the verdict was contrary to the great weight of the evidence. In view of the presumption in favor of the correctness of the verdict of the jury, and the added presumption after the trial court has overruled the motion, we cannot say with any degree of certainty that the preponderance of the evidence against the verdict was so decided as to convince this court that it was clearly wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Tennessee Coal, Iron & R. Co. v. Stevens, 115 Ala. 461, 22 So. 80; 2 A Alabama Digest, Appeal & Error, k933(1).

Appellant also contends that the trial court erred in permitting two of defendant's witnesses to testify as to the ownership of the automobile. As to witness Jewell, it later developed that the witness was testifying as to his assumptions, and the trial court thereupon excluded this testimony. The error, therefore, if so, was cured by the exclusion of the testimony. Hammond Motor Company v. Acker, 219 Ala. 291, 122 So. 173; Tapscott v. Gibson, 129 Ala. 503, 30 So. 23.

The trial court also allowed defendant's witness,...

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8 cases
  • Alabama Power Co. v. Taylor
    • United States
    • Alabama Supreme Court
    • January 9, 1975
    ...hypothesized his direction to the jury to return a verdict for plaintiff on the jury's belief of the evidence, citing McHugh v. Harrison, 266 Ala. 138, 94 So.2d 756 (1957); (2) That there was a scintilla of evidence from which the jury could have found that Alabama Power Company was not neg......
  • Gulf States Paper Corp. v. Hawkins
    • United States
    • Alabama Supreme Court
    • December 22, 1983
    ...Ala. 245, 259 So.2d 797 (1972). "A defendant as well as a plaintiff is entitled to the benefit of the scintilla rule. McHugh v. Harrison, 266 Ala. 138, 94 So.2d 756 (1957)." Turner v. Peoples Bank of Pell City, 378 So.2d 706, 709 (Ala.1979) (quoting Alabama Power Company v. Taylor, 293 Ala.......
  • Parker v. Muse
    • United States
    • Alabama Court of Civil Appeals
    • July 14, 1971
    ...It has long been settled in this state that ownership of personal property is a fact to which a witness may testify. McHugh v. Harrison, 266 Ala. 138, 94 So.2d 756. It appears from argument in brief that the next charge of error is the overruling by the trial court of objection of appellant......
  • CIT Financial Services, Inc. v. Bowler
    • United States
    • Alabama Supreme Court
    • November 18, 1988
    ...the mortgage, and the scintilla of evidence rule applies to affirmative defenses, as well as to a plaintiff's claims. McHugh v. Harrison, 266 Ala. 138, 94 So.2d 756 (1957). A ratification occurs when a principal retains the benefits resulting from his agent's unauthorized acts with knowledg......
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