Crutcher v. Memphis & Charleston Railroad

38 Ala. 579 | Ala. | 1863

A. J. WALKER, C. J.

[1.] — The contract of hiring in this case was not, prima facie, the contract of the defendant, but of him by whom it was executed. The word “agent,” following the signature to the contract, does not constitute it the contract of an agent for his principal. — Drake v. Flewellen, 33 Ala. 106. The contract was, therefore, prima facie, inadmissible; and, in the absence of the introduction or offer of explanatory evidence, was properly excluded.

[2.] There was no error in rejecting the offer in evidence of the deposition of Newby, with its exhibit; for at least a portion of it was illegal, and the court was authorized to exclude the legal and illegal evidence offered together. — Hiscox v. Hendree, 27 Ala. 216 ; Jeans v. Lawler, 33 Ala. 340.

[3.] The bill of exceptions does not purport to set out all the evidence. We therefore-do not know that all the evidence in the case is before us, and cannot affirm that the court erred in its charge upon the effect of the evidence if believed. If we knew that the bill of exceptions contained all the evidence, we should decide that the charge was correct; for, upon that evidence, the defendant is not chargeable on account of the death of the slave. The mere-fact that the slave was employed in the construction of the defendant’s road, could not render it liable. The court, therefore, committed no error in refusing the charge asked.

The bill of exceptions informs us, that after the retirement of the jury, they were re-called by order of the court; and that thereupon the court “repeated the charge to the jury it had first given, accompanying the charge with the intimation, that their further deliberations must result in a verdict for the defendant, else they would subject themselves to the consequences of a contempt of court.” The chai’ge which the court first gave was, that if the jury believed the evidence, they must find for the defendant. This was, therefore, the charge which was repeated to the jury, in connection with the menace of punishment, unless a verdict was found for the defendant. The court instructs the jury that, if they believe the evidence, they must find for the defendant, and accompanies the instruction with an intimation, that they will incur the penalties of contempt, if their deliberations did not result in a yerdict for the defendant. The credibility of the testimony is referred to the jury for their determination, and they were caused to retire for further deliberation. If there was a question for the jury to determine, their deliberations should have been left free*and uncontrolled. That there was such a question, is clearly implied from the charge given ; and in assuming to control the decision of that question, the court erred. The charge is upon its face erroneous, in that it refers a question to the jury, and then assumes to control its decision.

It may be, that the plaintiff sdstained no injury from this error ; and we would probably so hold, if we knew that the bill of exceptions contained all the evidence. The bill of exceptions discloses no evidence whatever, showing, or tending to show, a responsibility of the defendant on account of the slave’s death. So far as it is concerned, there is entire absence of any evidence of the defendant’s liability. Therefore, if the whole testimony is set out in the bill of exceptions, there was a want of any evidence upon which to charge the defendant, and the court was authorized to direct the jury to bring in a'verdict for the defendant. Such a direction is proper, where there is a plain and indisputable failure of the plaintiff to make out his case in some essential particular. — Gillespie v. Battle, 15 Ala. 276-285 ; Knox v. Fair, 17 Ala. 503 ; Swift v. Fitzhugh, 9 Porter, 39 ; Madden v. Blythe, 7 Porter, 258 ; Henderson v. Mabry, 13 Ala. 713 ; Rhodes v. Otis, 33 Ala. 578 Rigby v. Norwood, 34 Ala. 129 ; Shepherd’s Digest, 459. In doing so, the court does not pass upon the credibility of testimony, nor upon any conflict of evidence. It does not even announce the existence of evidence. It simply declares the want of evidence, and the effect of its absence.

We conjecture that, in reality, the bill of exceptions does contain all the evidence in this case, and that the instruction of the court was really given in a case where it was permissible to direct the jury to return a particular verdict; and we suppose, that the question of the credibility of the testimony was referred to the jury, in a phrase of such frequent occurrence as to become almost habitual with circuit judges ; and that, in the hurry of the trial, the inconsistency of a reference of such a question with the assumption of a right to direct the verdict, escaped attention. We are, however, bound to render our judgment upon the case as the record makes it; and upon the record it is our plain duty to reverse the judgment of the circuit court. An error was committed j we do not know, from the bill of exceptions, that the entire evidence is before us ; we are, therefore, not authorized to say that no injury resulted from the error committed ; and, upon a principle repeatedly announced by us, there must be a reversal.

Reversed and remanded.