Birmingham Fire Brick Works v. Allen , 86 Ala. 185 ( 1888 )

SOMERVILLE, J.

The action is one brought by the appellee, Allen, against the appellant corporation, for work and labor done on certain fire brick kilns, under an agreement by which the plaintiff was to furnish the labor, and do the work in first-class style; while the defendant was to furnish the plans and material, and to pay a specified sum per thousand for laying the brick. The evidence tended to show that the work when done was worthless for the uses intended; but it was conflicting on the point as to whether this resulted from the defective plans and material, or from the unskillful manner in which the work was .executed by the plaintiff. The main controversy in the trial court seems to have been as to the number of brick laid, as ascertained by measurement and other modes of estimate.

1. In this view of the case, there was no error in the first charge of the court, given at the plaintiff’s request, that it was not necessary for the plaintiff to. satisfy the jury with “mathematical certainty” as to the number of brick laid in the kilns, in determining such number, but that proof of the fact with reasonable certainty was all that was requisite.

2. The second charge also contains no reversible error, although susceptible of criticism on the ground of its tendency to mislead the jury. The plaintiff had proved the fact, without objection, that he had requested one Stevens, the president of the defendant corporatian, to go with him to the premises and measure the quantity of brick in the kilns, and that Stevens had refused to go with him, having previously driven plaintiff’s foreman and workmen away, and declining to allow the work to progress.' This fact tended to show an effort on the part of the plaintiff to adopt proper means to arrive as nearly as practicable at the most accurate measurement of his work — to approximate as nearly as possible, in other words, to that mathematical certainty which the defendant insists he should have attained. This evidence having gone to the jury without objection, the court correctly charged the jury, that, in making up their verdict, they could consider it in connection with all the other evidence in the case. The charge might well have been refused, as one argumentative in its nature, but this alone did not render it erroneous. Its misleading tendencies could have been corrected by a counter charge to the jury requested on the part of the defendant.

3. The court did not err in refusing to give the first charge requested by the defendant. The evidence tends to show that the failure of the plaintiff to construct the kilns in a first-class manner may have been attributable to the defect in the plans and material furnished by the defendant, as well as to the plaintiff’s want of artistic skill; and if this were so, he would not be totally debarred from recovering anything for his work, as asserted by this instruction. The charge ignored this qualifying evidence, and was, therefore, erroneous.

4. The second charge requested by the defendant is self-repugnant. The first part of the charge asserts, that the plaintiff must make out his case to the reasonable satisfaction of the jury; and the second part asserts, that if the evidence leaves them in reasonable doubt as to the correctness of any item of the plaintiff’s account, then the plaintiff is not entitled to recover the amount of such item. This is an attempted amalgamation of two separate rules of evidence, one of which applies to civil, and the other to criminal cases. “In civil actions, juries are authorized to decide on the mere preponderance of the evidence, when it produces satisfactory conviction. In criminal prosecutions, they are not authorized to convict, unless they are satisfied of the party’s guilt beyond any reasonable doubt.” — Britton v. The State, 77 Ala. 202, 209. If it be true, as declared by the charge under consideration, that the jury must find against the plaintiff,, as to all items of the account in reference to which the evidence leaves them “in reasonable doubt,” it necessarily follows that they can not find for the phdntiff on such items, unless the evidence satisfies them to such an extent as to exclude such doubt, or, what is the same thing, satisfies them beyond a reasonable doubt. The court properly refused this instruction.

Affirmed.