Opinion
6 Div. 112.
April 14, 1932.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Anderton Batten and Randolph Hobbs, all of Birmingham, for appellant.
Where the evidence is manifestly and palpably in favor of the verdict, it is reversible error to grant a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Mooneyham v. Herring, 204 Ala. 332, 85 So. 390; Sansom v. Covington County Bank, 17 Ala. App. 556, 87 So. 406; Acuff v. Lowe, 211 Ala. 394, 100 So. 761. The general charge should not be given for defendant when there is evidence tending to prove each material averment of the complaint. Corona Coal Co. v. Sexton, 21 Ala. App. 51, 105 So. 716; Mann v. Butcher, 211 Ala. 669, 101 So. 595; Brooks v. Swift Co., 210 Ala. 364, 98 So. 16; So. R. Co. v. Cates, 211 Ala. 282, 100 So. 356.
William S. Pritchard, James W. Aird, and Thomas H. Fox, all of Birmingham, for appellee.
Where there is no evidence to support a count in a complaint, the refusal to charge that the jury could not find a verdict for plaintiff on that count was error, and is not cured by the fact that the jury might have found for plaintiff under other counts. Mansfield v. Morgan, 140 Ala. 567, 37 So. 393; Ala. Power Co. v. Conine, 207 Ala. 435, 93 So. 22. An instruction which assumes a fact not supported by the evidence is erroneous. Anniston City Land Co. v. Edmondson, 145 Ala. 557, 40 So. 505; B. R. L. P. Co. v. Mullen, 138 Ala. 614, 35 So. 701; Baker v. Eastis, 215 Ala. 402, 110 So. 705. When the oral instruction is calculated to mislead the jury, the granting of a new trial on such ground will not be reviewed. Montgomery L. T. Co. v. Riverside Co., 188 Ala. 380, 66 So. 459.
This appeal is by the plaintiff from the order of the court granting defendant's motion for a new trial.
The first count of the complaint declares as for the breach of the condition of a written lease entered into between the parties on the 15th day of August, 1925, "for failure to deliver over the furniture and fixtures" in the leased premises at the expiration of the lease, and for attorney's fees for the prosecution of the suit as stipulated in the lease.
While it appears from the bill of exceptions that the witnesses were interrogated in respect to the lease which was handed to one of the witnesses during the trial, it does not appear that the lease itself was offered in evidence; nor is it set out in the bill of exceptions.
At the conclusion of the evidence and before the jury retired, the defendant excepted to that part of the oral charge of the court authorizing them to ascertain and assess against the defendant an attorney's fee, and also requested the affirmative charge as to count one, which was refused.
The lease not being in evidence, the plaintiff was not entitled to recover on the first count of the complaint, and the rulings of the court above stated as to this count justified the granting of a new trial. Burns v. Broughton et al., 223 Ala. 527, 137 So. 418; Mansfield v. Morgan, 140 Ala. 567, 37 So. 393; Alabama Power Co. v. Conine, 207 Ala. 435 93 So. 22.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.