43 So. 411 | Ala. | 1907
We notice only the assignments of error insisted on, the first of which is, that the court-erred in overruling the plaintiff’s demurrer to the fifth plea. That demurrer proceeds upon the objection, that the plea does not aver or show, that the $500.00, alleged therein to have been paid by defendant in satisfaction and discharge of the cause of action in this case, ivas a fair and reasonable amount to he paid and received in satisfaction of said claim, and fails to aver and show that said settlement was authorized or ratified by a court of competent jurisdiction. The demurrer cannot be sustained. Section 138 of the Code of- 1896 authorizes an executor or administrator, by the authority of the probate court to compromise or settle a doubtful or bad claim due the estate, but does not prohibit the executor or administrator from settling such a claim, without.the authority of the court. That section and the authority of the court to authorize such settlement, is for the greater security of the executor or administrator. — Logan, v. C. I. & C. Co., 139 Ala. 549, 556, 36 South. 729.
The plea alleges in the most explicit terms that $500.00 was paid by defendant to the administrator, the original plaintiff, and that she accepted the same, while
What has been said as to the demurrer to- this plea, applies with equal force to the demurrer to- the sixth plea.
Waiving consideration as to whether the name, Laudine Schulern is idem sonans with Laurine Schuler, it may be said that the real question'involved is not one of idem sonans but of identity of person, of whose estate Izora Griffin was the administratrix in chief. The plea, leaves no doubt in the mind, that it was the estate of Laurine Hehuler, deceased, that is referred to.- The estate of no other poison is referred to in the pleadings; Izora Griffin was the administratrix of no other estate, and the instrument set out. in plea 6 fully identifies the cause of action, the court in which it is pending, the death of the intestate, the injuries complained of, and the character in which the administratrix acted in executing the release. The error assigned is, that the court erred in admitting the release in evidence, and all the evidence affirmatively shows the identity of the prsonal representatives and of the intestate and the causo of action.
The question propounded to- the witness calling for bis opinion, as to the mental condition of Mrs. Griffin, went beyond the fact testified to by the witness, and predicated the opinion of the witness upon other matters not testified to by him, and, therefore, the objection was properly sustained.
The testimony as offered by the witness, Bowman, was competent under the issue presented by replication 3 to- pleas 5 and 6, as tending to prove the averments of the replication. When thus admitted, it should not be considered by the jury on the issue presented by the gen-oral issue to the complaint, as admitting a liability on the part of the defendant, for the injury sought to- be recovered for.
It may be that the thirteenth charge for the defendant was bad in employing the words “grossly at fault.”
Charges 1, 3 and 20-, given for defendant,- assert no proposition of law and might have been refused on this account, but the giving of such charges will not constitute reversible error.
Cluuges 9 and 14, given for defendant, are argumentative and for this reason should have been refused, al though for giving them we do not reverse the judgment. Charge 17 is confusing and misleading and should have been refused.
Charges 18 and 35, given for defendant, -are misleading, but this does not constitute reversible error.
Charge 23 invades the province of the jury and ignores other evidence in the case, and should have been refused.
Charge 26 invades the province of the jury and should have been refused.
Charges 30 and 45, given for defendant, are argumentative, and while we do not reverse the trial court for giving argumentative charges, the charges should not have been given.
Charge 36, given for defendant, is invasive of the province of the jury and equivalent to- the affirmative charge for defendant on pleas 5 and 6, and the court committed reversible error in giving it.
Charge 37, given for the defendant, in view of the fact that there is evidence tending to show mental incapacity on the part of Mrs. Griffin at the time the release was signed, is bad and should have been refused.
Of charge 39, given for defendant, suffice it to say, it exacts a too high degree of proof and is otherwise vicious. — Carter v. Fulgham, 134 Ala. 238, 32 South. 684; So. Ry. Co. v. Riddle, 126 Ala. 244, 28 South. 422, and cases there cited.
Charges 46, 47, 49 and 50, assume as a fact that Mrs. Griffin talked with her husband about the settlement, without referring the credibility of the evidence to-the jury, and the charges are also argumentative; the court erred in giving them.
For the errors indicated the judgment of the circuit court is reversed and the cause remanded.
Reversed and .remanded.