106 So. 69 | Ala. Ct. App. | 1925
A new trial in this case should have been granted for, without considering others, two reasons:
In the first place, it is well settled in our state that in actions of this kind plaintiff carries the burden of proof to show by the evidence (1) negligence, and (2) that the injuries suffered were the proximate result thereof. In neither particular did the plaintiff (appellee) discharge that burden in the instant case: The overwhelming weight of the evidence is to the effect that whatever *164 injuries plaintiff may have suffered were the direct result of the unprecedented and little understood flu epidemic that swept over the country at the time of the death of her testate.
In the second place, the action was in tort and brought against the two appellants jointly. We find nowhere in the record any evidence showing or tending to show any community of design or interest existing between them. Any wrongs committed by either of them would seem to be entirely separate and distinct from any committed by the other, and no reason appears for joining them as defendants. We have been furnished with no brief on behalf of appellee, but a consideration of the whole record leads us to the conclusion that the verdict and judgment were founded in error, and ought not to stand.
For the error in overruling appellants' motion for a new trial, the judgment is reversed, and the cause remanded.
Reversed and remanded.
