147 So. 143 | Ala. | 1933
The affirmative charge was given for plaintiff expressly on count 2 of the complaint, upon which the verdict was rendered pursuant to the court's instruction, and all other counts were eliminated. This count was subject to the demurrer interposed thereto upon several grounds assigned in the original and amended demurrer. It is essential that the complaint disclose the existence of a relation between the parties, out of which arises a duty owing from the defendants to the plaintiff. Tennessee Coal Iron Co. v. Smith,
Whether defendant Kimbrough was the agent or servant of defendant Drennen Motor Car Company, or a mere bailee, is not made to appear. If the former, there is no averment that he was acting within the line and scope of his employment. Addington v. American C. Co.,
The complaint was insufficient, and the demurrer should have been sustained.
Upon the question of the affirmative charge, appellee insists that Kimbrough was the agent and alter ego of the Drennen Motor Car Company (citing Eureka Co. v. Bass,
We may add, however, that even should this theory be accepted, yet a jury question would be presented under the proof; Kimbrough testifying that Ray at the time of the accident had the car without his knowledge or permission, and in direct contradiction of the averments of count 2 in this regard. This count is indefinite and uncertain as to the theory of liability, and renders also uncertain the theory upon which the trial court acted in giving the affirmative charge. However that may be, in any event, said charge was erroneously given.
Both the Drennen Motor Car Company and Kimbrough have appealed, assigned errors, and argued the assignments here considered. Defendant Ray prosecutes no appeal. Tullis v. Blue,
For the errors indicated, let the judgment as to these appellants be reversed.
Reversed and remanded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.