Scrimscher v. House

• Decision Date: 20 April 1922
• Docket Number: 6 Div. 647.
• Parties: SCRIMSCHER v. HOUSE.
• Court: Alabama Supreme Court

92 So. 448

207 Ala. 334

SCRIMSCHER v. HOUSE.

6 Div. 647.

Supreme Court of Alabama

April 20, 1922

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action by Ben House against G. W. Scrimscher. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

Pinkney Scott, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

MILLER J.

This suit was commenced by Ben House against G. W. Scrimscher in the inferior court of Bessemer by attachment to collect a debt of $53.75 for material furnished in repairing an automobile of defendant, and to establish and enforce a lien for the materials on the automobile. There was judgment by default against defendant, with leave to execute a writ of inquiry in the inferior court, and the defendant appealed therefrom to the circuit court.

The complaint claimed in separate counts $53.75 due by account due for work and labor done and due for merchandise, goods and chattels sold by the plaintiff to the defendant. The defendant pleaded the general issue, set-off, and recoupment. The jury returned verdict for plaintiff for $53.75, judgment was rendered thereon by the court, and the defendant appeals therefrom.

The defendant requested the court to give the general affirmative charge with hypothesis in his favor. The court refused to give it, and the errors assigned are based on the court's refusal to give that charge.

The scintilla of evidence rule prevails in this state. Penticost v. Massey, 202 Ala. 681, 81 So. 637. In McMillon v. Aiken, 205 Ala. 40, headnotes 9-11, 88 So. 139, this court, through Justice Thomas, wrote:

"If there is evidence reasonably affording an inference adverse to the right of recovery by the party asking the general charge *** or from which the jury might draw an inference adverse to such party, the general charge should not be given."

We have read all of the evidence in this case, and we find some in the record which, if believed by the jury, would entitle plaintiff to recover. The testimony of plaintiff and defendant is irreconcilable; the jury alone could settle it. There is clear, positive proof or clear inferences therefrom which, if believed by the jury, would give plaintiff the right to recover; and there is also clear, positive proof or clear inference therefrom which, if believed by the jury would entitle the defendant to a verdict...