Brown v. Corona Coal Co.

MILLER, J. This suit was commenced in the city court of Jasper, which has jurisdiction of a justice of the peace court, by G. F. Brown against the Corona Coal Company, a corporation, for damages to crops of plaintiff caused by the mules or horses of defendant. It was appealed from the city court of Jasper ro the circuit court. It was trieii in both courts on a count charging that defendant negligently permitted its mules or horses to trespass on lands or crops of plaintiff and destroy bis crops to the value of $100. After all the evidence was introduced in the circuit court, the plaintiff by leave of the court amended the complaint by adding count A. The cause was submitted to the jury by the court under counts 1 and A, and the general issue filed to each by the defendant. Count A claims damages of defendant for breach of a contract. There was a verdict by the jury'in favor of the defendant, a judgment thereon by the court, and from it plaintiff prosecutes this appeal. [1] The court gave the general affirmative charge, with hypothesis in favor of the defendant, and which defendant requested in writing. All such cases on appeal in the circuit court must be tried do novo, and according to equity and justice, without regard to any defect in the summons or other process or proceedings before the justice. Section 4720, Code 1907. Each count of the complaint, 1 and A, states a cause of action; neither is fatally defective. Where the testimony affords a basis for a recovery by the plaintiff under either count, the general affirmative charge with hypothesis should not be given in favor of the defendant, as requested in this case. Such a charge should not be given “when there is evidence which authorizes a reasonable inference of facts unfavorable to a right of recovery by the party asking such charge.”. White v. Farris, 124 Ala. 462, headnoté 7, 27 South. 259; Horn v. Pope, 205 Ala. 127, headnote 4, 87 South. 161; McMillan v. Aiken, 205 Ala. 35, headnotes 10, 11, SS South. 135; Peters v. Southern Ry. Co., 135 Ala. 533, 33 South. 332. We have read the evidence carefully. We find there is testimony, or reasonable inferences therefrom, which, if believed by the jury, would authorize them to return a ver *523 diet in favor of plaintiff and against the defendant l'or the value of the damages to his crop caused by the stock of defendant. To set out and comment on that testimony in this opinion would serve no good purpose. The general affirmative charge with hypothesis in favor of the defendant, requested by the defendant, should not have been given by the court. For this error the judgment must be reversed, and tbe cause remanded. Reversed and remanded. ANDERSON, O. J., and SAYRE and GARDNER, JJ., concur. Footnotes [1] <§^»For other'cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes