65 So. 417 | Ala. Ct. App. | 1914
This was an action by the appellees to recover damages for the killing of a mare, alleged to be their property, by a locomotive of the appellant. The evidence showed that one of the appellees (plaintiff below) had been the sole owner of the mare, and was in possession of it at the time it was killed, prior to that time having included it in a mortgage to the other appellee, the law day of which had passed; the mortgagee allowing the mortgaged property to be retained by the mortgagor, who had paid interest on the mortgage debt.
The appellant contends that the general affirmative charge requested in its behalf should have been given because of a variance between the allegations and the proof as to the ownership of the mare. The evidence showed that each of the plaintiffs had a property interest in the mare, the one as the owner of it subject to an unforeclosed mortgage, and the other as the mortgagee.
Furthermore, no objection on the ground of a misjoinder of plaintiffs was made in the court below. When
The undisputed evidence was not such as to acquit the defendant of negligence in the killing of the mare, and the defendant was not entitled to require the court to give the Avritten charges which Avere refused. — Southern Railway Co. v. Penney, 164 Ala. 188, 51 South. 392.
Affirmed.