Mitchell v. Shelby

Appellee sued appellant in his representative capacity for a sum alleged to be due from appellant's intestate for board and lodging furnished by appellee, and had judgment for a part of her demands.

No exceptions are taken to the introduction of evidence, and the appellant says in brief that the court submitted to the jury in its oral charge: (1) Whether or not there was a positive contract between the plaintiff and defendant's intestate, for the payment of board; (2) whether or not there was an implied contract; (3) whether or not the services rendered by plaintiff to appellant's intestate were intended as a gift and so received by the intestate; and (4) whether or not there had been payment of the board and lodging furnished by plaintiff, during the lifetime of appellant's intestate.

These were all the issues presented by the pleadings and the evidence, and each was a jury question under the evidence.

But appellant complains of certain charges given for the plaintiff, insisting that they withdrew from the jury the question of payment by intestate during his life for the services rendered, as well as the question of a gift by plaintiff to appellant's intestate of these services.

An examination of the charges shows that they are not erroneous, but that at most they are only misleading. They do not withdraw from the jury consideration of the defenses set up, but deal only with payment, and the fact that plaintiff was under no legal duty to furnish intestate board and lodging. The rule is that charges positively erroneous cannot be cured by the giving of a correct one, whether oral or written; but this is without application when such charges possess misleading tendencies, or do not treat all of the matters in issue. The vice of these charges could have been corrected by explanatory charges, and they were corrected or rendered harmless by the full and ample oral instructions of the court. Forbes Carloss v. Plummer, 198 Ala. 162, 73 So. 451.

A review of the record convinces us that the issues were fairly, and properly submitted and that the cause should be affirmed.

Affirmed.

On Rehearing.