118 So. 172 | Ala. | 1928
The plaintiff (appellee) in this case suffered injuries in the accident which furnished the basis of the suit in Thomas v. Carter (Ala. Sup.)
Defendant had turned his automobile, in which he and the plaintiff were riding with others, over to Jewel Thomas, who was driving it for him, when the accident happened in which plaintiff was hurt. Counts 1 and 2 of the complaint, like the complaint described in the report of Thomas v. Carter, presented in the alternative an alleged case of negligence on the part of defendant in the operation of the car or negligence on the part of the driver for which responsibility was charged to defendant under the doctrine of respondeat superior. Count 3 charged negligence to the driver, alleged to have been "acting under the authority of and with the consent of defendant." Defendant offered no evidence. Clearly enough, the evidence disclosed a case in which defendant might have been held liable under the doctrine of respondeat superior, and, it may be, under the other charge made in the complaint. We do not mean to say that liability in any sort was shown as matter of law, but only that the jury would have been well justified in *170 drawing the inference of liability. In other words, the question of liability was one for jury decision.
The court, in its oral charge to the jury, instructed them, in effect, that plaintiff's right to recover depended upon the question whether she had been able to show that defendant had been negligent in turning over the driving of his automobile to Jewel Thomas, who was driving it at the time of the accident, and that his negligence in that respect proximately caused the accident. In this the court instructed the jury substantially in the language of the charge shown in the forty-sixth assignment of error in the case of Thomas v. Carter (Ala. Sup.)
There was error of law in the trial of this cause, but no adequate exceptions were reserved, and such errors were not available on the motion for a new trial. However, much must be conceded to the judgment of the trial court on the general merits of the case, and, that court having been of opinion that the ends of justice were not served by the verdict, and having set aside the verdict on that ground, this court will not interfere to prevent another trial in which the rights of the parties may be properly ascertained and declared.
The judgment of the trial court setting aside the verdict will be affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.