| Miss. | Mar 15, 1917
delivered the opinion of the court.
Appellant sued the appellee in the circuit court of Hinds county for an unpaid plumbing bill and for labor and material furnished in the installment of electrical fixtures and for transferring same from one house to another. Appellee interposed two defenses — payment and that the debt sued on was for her use in a house of ill fame.
The verdict of the jury and the judgment of the court was for the defendant, and plaintiff appeals to this court.
' The first assignment of error is the giving of this instruction, viz.:
“The court instructs the jury for the defendant that the burden of proof is upon the plaintiff, Luderbach, to establish his case by a preponderance of the evidence, and that, if he fails to establish his case by a preponderance of the evidence, as to any part of the account, it is your duty to find for the defendant. ’ ’
This instruction does not correctly state the law, and this is admitted by counsel for appellee, but it is con
We are of opinion that the instruction was fatal error and cann'ot be harmonized with the other instructions given by the court. Indeed, it is difficult to understand how the jury could have reached the conclusion that all of the debt sued on had been paid, and it is quite evident that the jury was warranted in believing that plaintiff had not proven some one of the items of his claim, and, believing this, the court had directed a verdict for the defendant. But it is contended that defendant was entitled to peremptory instruction because plaintiff furnished the labor and material to promote the business of prostitution, and therefore the verdict was right.
We do not believe that there is any merit in this contention. This question was presented to this court in a recent case strikingly similar in its facts to the case presented by the present record. See Insurance Co. v. Heidelberg, 72 So. 852" court="Miss." date_filed="1916-10-15" href="https://app.midpage.ai/document/aetna-insurance-v-heidelberg-7992521?utm_source=webapp" opinion_id="7992521">72 So. 852.
Reversed. and remanded.