Penticost v. Massey, 6 Div. 851-862

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation81 So. 637,202 Ala. 681
PartiesPENTICOST v. MASSEY.
Decision Date17 April 1919
Docket Number6 Div. 851-862

81 So. 637

202 Ala. 681

PENTICOST
v.
MASSEY.

6 Div. 851-862

Supreme Court of Alabama

April 17, 1919


Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by S. Penticost, as administrator, against Richard W. Massey. From a judgment granting a new trial after verdict for plaintiff, plaintiff appeals. Affirmed.

Bondurant & Smith, of Birmingham, for appellant.

Stokely, Scrivner & Dominick and Harsh, Harsh & Harsh, all of Birmingham, for appellee.

THOMAS, J.

This is the second appeal in this cause. Penticost v. Massey, 77 So. 675. The last trial resulted in a judgment for plaintiff; and on motion of defendant a new trial was granted, from which judgment the appeal is taken, and is prosecuted in this court. [81 So. 638.]

The bill of exceptions recites that it contains all of the evidence "had upon the trial of the said cause, and all of the evidence introduced and had upon the trial of said motion," on which the new trial was granted.

The appellee insists that the "laws involved (in the two appeals) are not the same"; that the "charge held error in the former appeal was the direction of a verdict (for defendant) without hypothesis; on this appeal the charge involved contained the hypothesis that the jury believe the evidence;" and that "several materially different aspects in the evidence" were presented in the respective trials, but that "in general the facts are the same as those upon the former appeal."

It is essential to orderly administration of the law, as well as consonant with the power given by statute (Code, § 4631), that the jury obey the instructions the court gives them as the law, having application to the facts in evidence, or the reasonable inferences to be drawn therefrom; and a verdict rendered in disregard of such instructions, though the instructions of the court be erroneous, is against the law of the case as declared by the trial court, and in a proper case "should be set aside." Talley v. Whitlock, 73 So. 976, 979; Fleming v. L. & N.R.R. Co., 148 Ala. 527, 528, 41 So. 683; Marcu v. State, 89 Ala. 23, 8 So. 155; Wolf v. Doe ex dem. Delage, 150 Ala. 445, 447, 43 So. 856; Meadows v. State, 182 Ala. 51, 57, 62 So. 737; Rentz v. Bridges, 177 Ala. 616, 59 So. 63.

Mr. Proffatt, in his Jury Trial, § 306a, p. 373, said:

"Those who have carefully studied this system have repeatedly pointed out the necessity of keeping [the court and the jury] each in its appropriate sphere, as the
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34 practice notes
  • Edwards v. Southern Ry. Co., 6 Div. 869
    • United States
    • Supreme Court of Alabama
    • 11 juin 1936
    ...77 So. 998; Commonwealth Life Ins. Co. v. Brandon (Ala.Sup.) 167 So. 723. The scintilla rule prevails in this state. Penticost v. Massey, 202 Ala. 681, 81 So. 637; Cleveland Laundry Machinery Mfg. Co. v. Southern Steam Carpet Cleaning Co., 204 Ala. 297, 85 So. 535. The rule that obtains in ......
  • Birmingham Amusement Co. v. Norris, 6 Div. 519
    • United States
    • Supreme Court of Alabama
    • 28 avril 1927
    ...Co., 148 Ala. 527, 41 So. 683; Wolf v. De Lange, 150 Ala. 445, 43 So. 856; Rentz v. Bridges, 177 Ala. 616, 59 So. 63; Penticost v. Massey, 202 Ala. 681, 81 So. 637; Standard Oil Co. v. Humphries, 205 Ala. 529, 88 So. 855. Plaintiff's insistence, on the other hand, is that charge 20 was, in ......
  • Alabama Power Co. v. Taylor
    • United States
    • Supreme Court of Alabama
    • 9 janvier 1975
    ...as contrary to the instructions of the court. Piedmont Fire Ins. Co. v. Tierce, 245 Ala. 415, 17 So.2d 133 (1944); Penticost v. Massey, 202 Ala. 681, 81 So. 637 (1919). Thus while the affirmative charge with hypothesis submits the credibility of the witnesses to the jury, in effect the jury......
  • Louis Pizitz Dry Goods Co. v. Cusimano, 6 Div. 146.
    • United States
    • Supreme Court of Alabama
    • 27 octobre 1921
    ...on each count to the jury. This being true, the court did not err in leaving it to them by refusing these charges. Penticost v. Massey, 202 Ala. 681, 81 So. 637; Amerson v. Corona Coal Co., 194 Ala. 175, 69 So. 601; McCormack Harv. Co. v. Lowe, 151 Ala. 313, 44 So. 47. There are three error......
  • Request a trial to view additional results
34 cases
  • Edwards v. Southern Ry. Co., 6 Div. 869
    • United States
    • Supreme Court of Alabama
    • 11 juin 1936
    ...77 So. 998; Commonwealth Life Ins. Co. v. Brandon (Ala.Sup.) 167 So. 723. The scintilla rule prevails in this state. Penticost v. Massey, 202 Ala. 681, 81 So. 637; Cleveland Laundry Machinery Mfg. Co. v. Southern Steam Carpet Cleaning Co., 204 Ala. 297, 85 So. 535. The rule that obtains in ......
  • Birmingham Amusement Co. v. Norris, 6 Div. 519
    • United States
    • Supreme Court of Alabama
    • 28 avril 1927
    ...Co., 148 Ala. 527, 41 So. 683; Wolf v. De Lange, 150 Ala. 445, 43 So. 856; Rentz v. Bridges, 177 Ala. 616, 59 So. 63; Penticost v. Massey, 202 Ala. 681, 81 So. 637; Standard Oil Co. v. Humphries, 205 Ala. 529, 88 So. 855. Plaintiff's insistence, on the other hand, is that charge 20 was, in ......
  • Alabama Power Co. v. Taylor
    • United States
    • Supreme Court of Alabama
    • 9 janvier 1975
    ...as contrary to the instructions of the court. Piedmont Fire Ins. Co. v. Tierce, 245 Ala. 415, 17 So.2d 133 (1944); Penticost v. Massey, 202 Ala. 681, 81 So. 637 (1919). Thus while the affirmative charge with hypothesis submits the credibility of the witnesses to the jury, in effect the jury......
  • Louis Pizitz Dry Goods Co. v. Cusimano, 6 Div. 146.
    • United States
    • Supreme Court of Alabama
    • 27 octobre 1921
    ...on each count to the jury. This being true, the court did not err in leaving it to them by refusing these charges. Penticost v. Massey, 202 Ala. 681, 81 So. 637; Amerson v. Corona Coal Co., 194 Ala. 175, 69 So. 601; McCormack Harv. Co. v. Lowe, 151 Ala. 313, 44 So. 47. There are three error......
  • Request a trial to view additional results

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