Ware v. Craven ( 1860 )

By the Court.

Stephens, J.,

delivering the opinion.

1.- We do not agree with the presiding Judge, that this verdict in favor of the defendant in the Justices’ Court is against the evidence. The only evidence which the plaintiff there had to carry it the other way, was his own affidavit, and the testimony of Mr. and Mrs. Chum. As to his own affidavit, it was met by a counter-affidavit by the defendant, and no reason is shown in the case why the jury should not have believed the defendant rather than the plaintiff. As to the testimony of Mr. and Mrs. Chum, it covers only one point among several, which were necessary for the plaintiff to establish, in order to recover. They state that he did the work, and that it relieved the young lady’s toothache. This is the whole proof. Now, aside from his own affidavit, which the jury considered to be overcome by the counter-affidavit of the defendant, the plaintiff had no proof as to how much the work was worth, and none to show that the work was suitable to the young lady’s estate and condition in life — the suit being against her guardian. It was said that any girl, with or without an estate, has a right to get relieved of a toothache and make her guardian pay for it. If this doctrine is conceded in favor of gallantry, (and it can hardly be conceded on any other score,) still, some care must be taken not to make the guardian, pay for anything but relieving the toothache. Now, it is very possible that the toothache, in this young lady’s case, could have been relieved as the toothache of her grandmother had, no doubt, often been relieved, by a plug of cotton, with a little laudanum on it, instead of fine plugs of gold. We think the jury were authorized to find the verdict which they found.

2. We do not think that there was any necessity to verify, by affidavit, the statement of facts in the petition for certiorari, in order to obtain the writ; and we concur with the Judge, in his refusal to dismiss the certiorari for the lack of such an affidavit.

Judgment reversed.