Life Casualty Ins. Co. v. Cain

SAYRE, X

The demurrer to the several counts of the complaint was overruled without error. It seems proper to say of count 1 that it was an elaboration of the common count for work and labor done. The pleader, instead of alleging simply that the work and labor had been done by the plaintiff for the defendant at its request (4 Code, form 10, p. 501), alleged a request “made by a servant, agent, or employee of defendant whilst acting within the line and scope of his service to, agency for, or employment by defendant.” This multiplication of words was unnecessary, but the result was substantially the same as the form set out in the Code, and no harm was done.

Plaintiff was allowed to introduce a number of statements in writing showing his earnings for each week of his service with deféndant. These statements had been prepared by him, and, of course, if this were the whole story, they should have been excluded. But plaintiffs testimony was that these statements were copies, made at the time, of statements he was required to make, and which he had made and delivered to defendant from week to week, and the inference was that defendant made no objection at the time. They were competent as in the nature of admissions. These statements were made on blank forms furnished by defendant, and it is true, as appellant suggests, that a footnote printed on each of them stipulated that the defendant would not be responsible for efrors made by agents. But plaintiff testified, in substance,'that the statements were correct. This made them admissible for the limited purpose stated.

Defendant complains that it made one contract with plaintiff, and that plaintiff was allowed to recover on another and different contract. It is doubtful on the record that, plaintiff was entitled to recover; but the evidence was in conflict and great confusion —so appellant concedes — ¡as to the terms of the contract between the parties. Plaintiff and Clayton, who was one of defendant’s superintendents of agents at.the'time plaintiff took service with defendant, testified in supiiort of plaintiff’s version of the contract. They testified to a contract in agreement with plaintiff’s contention and to facts from which the jury may have inferred that Adams, who was general manager of defendant’s Birmingham office, was familiar with its terms. It is clear that as a rule defendant made no such contracts with its soliciting agents. But it was for the jury to say in the circumstances of the present case what the contract with plaintiff was, and this court, with the view obtainable from this standpoint, is unable safely to say the trial court committed error in overruling defendant’s motion for a new trial on the ground that the verdict was contrary to the great weight of the evidence.

It is reasonably clear that appellant’s hope of a reversal depends in the main upon the assignment of error which relates to the court’s action upon its objection to an argument made by plaintiff’s attorney when discussing the case before the jury. The statement by counsel was improper, but not so highly improper as to be beyond the cure of the court’s instruction that it was improper and should not be considered by the jury. Appellant complains that the court’s ruling was perfunctory and lacking in that promptness and emphasis required by the decisions of this court in such cases. But that we cannot find on the face of the record. Nor do we find the impropriety of plaintiff’s argument to the jury so great as to have demanded the withdrawal and continuance of the case, as defendant suggested after its motion to exclude the remarks of counsel had been granted by the court.

Affirmed.

ANDERSON, G. X, and GARDNER and BOULDIN, JX, concur.