Opinion
6 Div. 124.
February 2, 1932. Rehearing Denied March 22, 1932.
Appeal from Circuit Court, Jefferson County; R. B. Carr, Judge.
Action on common counts by the Alabama Title Trust Company against the Birmingham Trussville Iron Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Birmingham Trussville Iron Co. v. Alabama Title Trust Co., 224 Ala. 523, 140 So. 885.
John S. Stone, M. L. Harrison, and John S. Stone Jr., all of Birmingham, for appellant.
The burden is upon the plaintiff in an action to recover the reasonable value of his services not only to prove what services he rendered, but also the value of such services rendered. Terry Realty Co. v. Martin, 220 Ala. 282, 124 So. 901; Lapsley v. Stoughton, 113 Ala. 413, 22 So. 264; Meyer-Kiser Corp. v. Dooley, 100 Fla. 243, 129 So. 592. The burden of proof is on the plaintiff to establish his case; it never changes. Robinson v. Griffin, 173 Ala. 372, 56 So. 124; Alexander v. Woodmen of the World, 161 Ala. 561, 49 So. 883; Robinson v. Smith, 207 Ala. 378, 92 So. 546; Atlantic Coast Line R. Co. v. J. W. Maddox Co., 210 Ala. 444, 98 So. 276; Green v. Waynesboro Motor Co., 217 Ala. 348, 116 So. 363; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Central Bank Trust Co. v. Ala. Broom Mattress Co., 204 Ala. 410, 85 So. 738; Western Union Tel. Co. v. Brazier, 10 Ala. App. 308, 65 So. 95; Birmingham Mineral R. Co. v. Wilmer, 97 Ala. 165, 11 So. 886. Hypothetical questions having no basis in the evidence should be rejected. Knowlton v. Central of Georgia R. Co., 192 Ala. 456, 68 So. 281; Ala. Great Southern R. Co. v. Cornett, 214 Ala. 23, 106 So. 242; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Massachusetts Mut. Life Ins. Co. v. Crenshaw, 195 Ala. 263, 70 So. 768; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763.
Oliver Henderson, of Birmingham, for appellee.
Expert witnesses may be cross-examined on purely imaginary and abstract questions in order to get their opinions on all possible theories of the case. Parrish v. State, 139 Ala. 16, 36 So. 1012. An instruction misplacing the burden of proof is not ground for a reversal, where the party upon whom it should have been placed has clearly proven his contentions. Moore v. Brewer, 94 Ga. 260, 21 S.E. 460; Supreme Court Rule 45. The only thing necessary to make out a prima facie case was to prove the work done at the request of defendant, the amount due, and that same is unpaid. La Fayette Ry. Co. v. Tucker, 124 Ala. 514, 27 So. 447; Merrill v. Worthington, 155 Ala. 281, 46 So. 477; Willis v. MacDougall Southwick, 127 Wn. 330, 220 P. 759; McFarland v. Dawson, 128 Ala. 561, 29 So. 327; Woodward Iron Co. v. Dabney, 205 Ala. 615, 88 So. 873; Farrell v. Betts Betts, 16 Ala. App. 668, 81 So. 188; Davis v. Webster Lumber Co., 207 Ala. 312, 92 So. 901.
This was a suit by appellee against appellant arising out of a controversy between them as to the amount of remuneration due appellee for services rendered in compiling and extending certain abstracts of title pertaining to certain lands of appellant.
It was without dispute that appellee was employed by appellant to do the work; that it did the work; and that it had not been paid for same.
The only thing in dispute was the amount that appellee was entitled to recover, no specific amount having been agreed upon, in advance of the doing of the work in question.
The complaint was framed as the "common counts," for work and labor done, etc.
The plea was the general issue, in short by consent, with leave, etc.
In this situation, the law is as declared by the Supreme Court in the opinion in the case of Terry Realty Co. v. Martin et al., 220 Ala. 282, 124 So. 901, 903, to wit: "To authorize a recovery on the quantum meruit, under the common counts, it was incumbent on the plaintiff [appellee, here], not only to show services rendered at defendants' [appellants, here] instance, but the reasonable value of such services." (Italics ours.)
The trial judge charged the jury, orally, in the instant case, as follows, to wit: "And that is the question that is submitted to you, what is the reasonable price to be charged for this large abstract. In determining that question, gentlemen, when the plaintiff shows that there was an amount due and it is unpaid, that shifts the burden on the defendant to show that that amount is not due, or that it was not a reasonable amount to charge." (Italics ours.) Due exception was reserved by appellant.
The giving of the charge, as we have quoted, constituted reversible error.
Indeed, appellee all but concedes that it was error, but argues very strenuously that it was error without injury — this on the theory that appellee furnished evidence (which it did) that was undisputed, that the amount it sued for, and which it recovered, was the reasonable amount to charge, or the reasonable value of the services undeniably rendered.
But we are not persuaded. True, no witness testified, directly, that the amount sued for was an unreasonable amount to be charged appellant by appellee for the services which were rendered. There was testimony, however, from which the jury would have been authorized to infer that the amount was unreasonable.
The burden was on the plaintiff to show that its charge was a reasonable one; not on the defendant to show that it was not a reasonable one.
And but for this part of the oral charge, the jury might — we do not say would — have drawn the inference that plaintiff had not discharged the burden of proof resting upon it.
We can see no relevancy in the testimony sought by the question put by plaintiff to its witness Adams as to the time, etc., it would take an abstractor, working in methods foreign to those shown by the evidence to have been actually employed, to have done the work appearing to have been performed by appellee. Appellant's objection to this question should have been sustained.
Nor does it appear to us material as to the amount of overhead expense, etc., attached to appellee's business. unless, forsooth, it should be shown that any establishment doing similar work in the same locality had to have a similar overhead expense. In other words, the question at issue was, "What was the reasonable value of the services performed?" Whether performed by an individual, a corporation with a minimum capital, or a corporation of colossal proportions, employing many hundreds of people, mattered not.
Other questions argued will not likely arise upon another trial.
For the errors pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.