Cothran v. Moore, 1 Ala. 423

Cothran v. Moore

1 Ala. 423

| Ala. | 1840

GOLDTHWAIT, J.

— 1. A request to re-detiver the bailed goods is certainly not essential to enable a plaintiff to maintain his action, in every ease where the suit is on the contract of bailment; as in the event either of a tortious conversion or destruction of the goods; or even a loss through the negligence of the bailee. In these and many similar cases, evidence of the facts would dispense with the necessity of a request to deliver, for the contract is shown to be broken by such proof. It is possible, that in this case a repuest might have been ncessarv, but, as the bill of exceptions is silent with respect to the evidence before the jury, we cannot say that it Was. It was incumbent on the defendant to show the charge to have been the appropriate one under the circumstancts attending the case. Keith v. Patton (2 Stew. 38) Pedon v. Moore (1 S. & P. 71,) Hunt v. Toulman (ib. 178,) Johnson v. Bellew (2 S. & P. 175,) Rives v. McLorky (5 S. & P. 330.

2. We are not prepared to determine that it is erroneous for a court to inform the jury, that if a witness is believed, a particular matter is proved, provided it is shown that the evidence clearly establishes the point; but in this case the court went much further, and left the question raised before it, in such a condition that the jury might have been misled by the instauctions given. We cannot know what was the effect produced by this charge, nor could the jury be in any manner aided by it in arriving at a proper conclusion. They may have considered the point as to the demand, wholly unnecessary to be examined; or they may have understood the court as assenting to the law of the case as stated by the defendant, and cousidered the demand as established by the testimony of the witness referred to; or some of the jurors may have disbelieved the witness, and yet have considered his evideceof no importance under the charge of the court; while *425others may have founded their verdict solely on his testimony It is useless, however, to speculate on the consequences of this charge; it is sufficient to pronounce that it is not warranted bylaw. Instructions to a jury should be direct and certain; when they are argumentative and evasive, the judgment will bereversed, if they are of a character calculated to mislead the jury.

The instructions given are liable to this objection, and the judgment is therefore reversed and the case remanded-