194 So. 649 | Ala. | 1940
The suit was for personal injury and property damage. The complaint as amended charged simple, willful, wanton, intentional conduct and injury. Amended count three was for simple negligence and count four was for "willful, wanton or intentional conduct."
Defendant's plea was the general issue, set-off and recoupment, growing out of the same collision and injury as embraced in pleas two to five, inclusive.
Errors assigned challenge the action of the trial court in giving its oral charge to the jury to which exception was reserved.
Several applicable propositions of law have been previously settled by this court. A general affirmative charge is proper if the plaintiff is entitled to recover under either count of the complaint. National Life Accident Ins. Co. v. Lokey,
When the verdict rendered is such that it was only for simple negligence, any error with respect to the willful and wanton count is harmless and will not require a reversal. Morrison v. Clark,
Where the plaintiff makes a prima facie case, showing ownership of the truck by defendant and agency of its driver at the time and place of collision, one or both, with the other elements of liability, in absence of countervailing evidence, plaintiff is entitled to the duly requested affirmative charge. Reynolds v. Massey,
In Tullis v. Blue,
And in Craft v. Koonce et al.,
It would follow from the foregoing authorities that if there was a reasonable inference to be drawn from the evidence to the effect that the driver of the truck was not at the time and place the agent of defendant (owner), and was not within the line and scope of his employment, a jury question is presented. Appellant insists that plaintiff's evidence showed as a part of the res gestae of the injury that the operator of the car stated immediately after the accident, "I am sorry this happened. I was in a hurry to get to Columbus to the ball game." This statement was uncontradicted by plaintiff's evidence and from it the jury may have drawn the reasonable inference that at the time of the accident, the driver of the truck was not acting within the line and scope of his employment, but had stepped aside therefrom and was on his way to Columbus with plaintiff's truck on a mission of his own. Such, in effect, is the decision in Dowdell v. Beasley,
The evidence as to the existence or non-existence of "agency", at the time and place of the accident, tends to warrant various reasonable inferences or conclusions as to whether or not the driver was acting within the line or scope of his employment as driver or agent. Thus a jury question was presented. Koonce v. Craft,
There was error in giving the affirmative charge at the request of plaintiff, and the judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *263