Wall v. Wall

• Decision Date: 11 September 1914
• Docket Number: 5543.
• Citation: 82 S.E. 791,15 Ga.App. 156
• Parties: WALL v. WALL.
• Court: Georgia Court of Appeals

82 S.E. 791

15 Ga.App. 156

WALL v. WALL.

No. 5543.

Court of Appeals of Georgia

September 11, 1914

Syllabus by the Court.

The solution of the question as to which party is entitled to the opening and conclusion of the argument is to be determined by the contentions of the parties as presented in their pleas. That party is entitled to the opening and conclusion who under the pleadings, is forced to sustain the affirmative in the final issue, and the opening and conclusion of the argument cannot properly be awarded to the defendant unless he has admitted such facts as would prima facie authorize a verdict in the plaintiff's favor without imposing upon the plaintiff the necessity of introducing proof of any kind. The admission must be unequivocal and not merely inferential.

In determining whether the usual implication of a promise to pay for services which are accepted is rebutted by the fact of close relationship between the parties, and the counter presumption that the services rendered were performed under the influence of duty or affection, each case must rest upon its peculiar facts. The proof of services, and also of relationship, leaves the case in equipoise which it is the duty of the plaintiff to remove. But in weighing what circumstances may be sufficient to imply a promise to pay for services rendered, even in cases of the closest relationship the nature of the services and the physical and financial condition of the parties should be taken into account, for the mere fact of relationship, no matter how near, will not of itself defeat recovery for services rendered by one related to another.

It is always the duty of the court, even without request, to fully and fairly present the law applicable to the contentions made by the parties, and thus give the jury the law of the case. But in the absence of an appropriate request for instructions, the failure of the court to direct the attention of the jury to the law applicable to isolated features in the evidence will not warrant a reversal, when the jury are correctly instructed as to the substantial and controlling issue of the case.

The evidence authorized the verdict, and there was no error in refusing a new trial.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by Martha Wall against L. Wall. Judgment for plaintiff, and defendant brings error. Affirmed.

A. C Corbett and G. N. Bynum, both of Atlanta, for plaintiff in error.

Kelly & Foster, of Atlanta, for defendant in error.

RUSSELL C.J.

This was a suit for money had and received. Exceptions are taken to the overruling of the defendant's motion to open and conclude the argument, and to the judgment refusing to grant the defendant a new trial.

1. In the first assignment of error it is insisted that the judge erred in refusing to allow the defendant to open and conclude the argument. Upon a consideration of the record, we are of the opinion that this complaint is without merit. The plaintiff brought an action to recover $100, alleged to have been deposited by her with her father, to be repaid as she might demand it. The defendant's motion that he be awarded the opening and conclusion was made before the introduction of any evidence, and for that reason the merits of the motion could only be determined by the pleadings. As pointed out in Albany Phosphate Co. v. Hugger, 4 Ga.App. 774, 62 S.E. 533, that party is entitled to the opening and conclusion who is forced by the pleadings to sustain the affirmative in the final issue between the parties, and this is to be determined by the contentions of the parties as presented in their pleadings. To have entitled the defendant in the present case to the opening and conclusion of the argument, the defendant must have admitted such facts as would have authorized a verdict in the plaintiff's favor without imposing upon the plaintiff the necessity of introducing any proof of any kind. Crankshaw v. Schweizer Mfg. Co., 1 Ga.App. 363, 58 S.E. 22. In the present case the only plea appearing is as follows:

"And now comes the defendant in the above stated case and for plea says

that at the time the plaintiff commenced the above stated action against the defendant, said plaintiff was and still is indebted to the defendant in the sum of $146.25, besides interest upon an open account, a copy of which is hereto attached and marked 'Exhibit A' and made a part of this plea, and defendant prays that said sum may be set off against plaintiff's demand, and that he may recover judgment over that the plaintiff sued on."

It is true there is an implied admission involved in the nature and form of the defendant's plea, but there is no such affirmative admission of the defendant's indebtedness to the plaintiff as would have relieved the plaintiff from the necessity of proving her case, or such as would have prevented a nonsuit if she had failed to produce sufficient evidence herself to establish her claim. The admission of a prima facie case on the part of a defendant which will entitle him to so substantial a benefit as the opening and conclusion of the argument is one which is unequivocal in its nature. A mere inferential admission will not suffice. It may be said that the plaintiff could have used the admission of the defendant himself as proof of the validity of her demands, but this would have required the introduction of the plea as evidence on her part, and the rule is well established that to entitle a defendant to the opening and conclusion, such a prima facie case must be admitted as will entitle the plaintiff to recover without the introduction of any testimony whatsoever.

2. The second and third assignments of error deal with the sufficiency of the evidence to authorize a recovery on behalf of the plaintiff, and with the failure of the judge to instruct the jury, even without a request, that as between near relatives there is no implication of a promise to pay for services of value rendered by one member of a common household to another occupying the same house and constituting a part of a common family. The bearings of these two exceptions in their effect upon the result of the present case are so intimately connected that the second and third assignments of error will be treated together. The judge did not charge the jury that where there is no express contract to pay for services rendered by one member of a family living together as one household to another member of that family no implication would arise from the mere rendition and acceptance of the services of a promise on the part of the person accepting the services that he would pay for them what they were reasonably worth. It...