63 So. 530 | Ala. | 1913
— In the case of Parker v. Bond, 121 Ala. 529, 25 South. 898, this court said: “While agency may not be proved by the declaration's of the agent, it may unquestionably be established by the testimony of the agent, and such testimony may involve only a statement of the fact of agency without going into the details as to how the relation was-brought about or as to the particular facts upon which it rests.”
In the instant case the plaintiff was permitted to prove by her husband, who was sworn, and who testified as a witness in her behalf, that in the year 1911 he was in charge of her business, and as her agent transacted business for her. The husband also testified that he, acting for and as the agent of his said wife, had the business transaction out of which this cause of action arose. This evidence was therefore competent.
2. The answer of the witness to the question made the basis of the eleventh assignment of error was not
3. During the progress of the trial the trial judge, in the presence and hearing of the jury, made certain remarks relative to some of the appellant’s witnesses which plainly indicated that the trial judge disbelieved their testimony. These remarks of the trial judge were confessedly improper, and, in making them, the trial judge palpably exceeded the limits of judicial discretion. We direct attention to the fact that these remarks of the trial judge are not assigned as error.. We also direct attention to the fact that the appellant did not move for a discharge of the jury on account of these remarks of the trial judge, and that he did not make these remarks a ground of his motion for a new trial.
After the trial judge had made the remarks above referred to, he told the jury, in effect, to pay no attention to his said remarks. This latter statement of the trial judge to the jury is made the subject of an assignment of error. We are satisfied that the direction of the trial judge to the jury not to consider his said remarks did not cure the situation which the unfortunate remarks had created; but this latter statement — the one here assigned as error — did, in some degree, tend to alleviate the situation. The latter statement was certainly not unfavorable to the cause of appellant. The trial judge, when he remarked in the hearing of the jury that he did not believe some of appellant’s witnesses, ran a hot iron into appellant’s case, and appellant should then and there have moved for a discharge of the jury. He might, also,
When the trial judge directed the jury not to regard anything that he had said about the witnesses, he poured oil into the wound which he had inflicted upon appellant’s case. We cannot reverse this case on account of the oil. We are not asked to do so on account of the hot iron. The oil probably did not cure the wound which the hot iron had inflicted; but it did have some tendency to heal the sore.
4. All assignments of error upon this record not above discussed have been waived by appellant.
The judgment of the court below is affirmed.
Affirmed.
