Carter v. Shugarman

SOMERVILLE, J. (1) The complaint charges that defendants’ servants in charge of the automobile, acting within the line and scope of their authority, “so carelessly and negligently operated and controlled the said automobile as to cause the same to run violently into, upon, or against the buggy in which plaintiff was riding, and as a proximate consequence thereof the plaintiff was thrown from the said buggy,” etc., and injured. This language sufficiently shows the causal connection between the negligent act of defendants and the injury suffered by plaintiff and the demurrers were properly overruled. (2) The negligence declared on is the negligence of defendants’ agents or servants, while the negligence shown, if any, was the personal act of one of the defendants himself. Conceding, without deciding, that this was a fatal variance between the allegations and the proof, which would have entitled defendants, one or all, to the general affirmative charge if the variance had been properly brought to the attention of the court; yet the defendant-appellant was not so entitled because he failed to do so by a proper objection to the evidence. (3) The requirement of rule of circuit court practice No. 34 is not met by a mere statement to the trial court that the general charge was requested on the ground of a variance between the allegation and the proof. — U. S. Health & Acc. Co. v. Goins, infra, 73 South. 117. (4-6) Defendants filed a special plea (No. 5) that they “did not jointly commit the acts complained of in the complaint.” This is an allegation of fact, and not a mere statement of law. It was a bad plea since, even if true, the fact alleged was no bar to individual liability. Yet plaintiff took issue on the plea, and the evidence showed without dispute that only one of the defendants [579] (R. H. Carter) had any connection with the negligent act complained of. The law in such cases was vigorously stated by Stone, C. J., in Winter v. Pool, 100 Ala. 503, 506, 14 South. 411, 412, as follows : “When parties go to trial on an immaterial issue, the verdict and judgment may be decisive of the case; and the rulings must be made to accommodate themselves to the issue as formed. If the truth of the averment in bar or preclusion be made good, this must control the finding and the judgment, irrespective of the inquiry whether it raised the question of merit in the contention. In such conditions parties must be left free to choose their own methods of forensic warfare, and to determine their conflicting claims in the manner of their mutually consenting choice.” Under this rule, which has been declared and enforced many scores of times by this court, early and late, the defendant-appellant was entitled to the general affirmative charge on the evidence, as requested by him in writing, and its refusal must be pronounced error to a reversal of the judgment. — McGhee v. Reynolds, 117 Ala. 413, 23 South. 68. Reversed and remanded. Anderson, C. J., and Mayfield and Thomas, JJ., concur.