Mullins v. Lemley

• Decision Date: 21 April 1921
• Docket Number: 8 Div. 338
• Citation: 88 So. 831,205 Ala. 593
• Parties: MULLINS v. LEMLEY.
• Court: Alabama Supreme Court

88 So. 831

205 Ala. 593

MULLINS v. LEMLEY.

8 Div. 338

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Madison County; Robt.C. Brickell, Judge.

Action by G.C. Lemley against T.K. Mullins for damages to a horse and buggy in an automobile collision.Judgment for the plaintiff, and the defendant appeals.Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

Lanier & Pride, of Huntsville, for appellant.

Robt.E. Smith, of Huntsville, for appellee.

McCLELLAN J.

The plaintiff(appellee) was awarded a judgment against defendant(appellant) for $70 as damages resulting from a collision, on a public highway, between defendant's automobile and plaintiff's horse and buggy.The first count of the complaint was not subject to the original or additional grounds of demurrer interposed thereto.It was not necessary to aver in the count that plaintiff was driving his horse on this occasion, or to name, in the count, the person or persons driving the horse.Damages to property negligently or wrongfully injured by another on a public highway may be recovered regardless of the person in charge of the damaged property at the time; though, of course, contributory fault on the part of the person in control of it may defeat the right to recover in proper cases.

The judgment entry recites:

"Issue being joined on the plea of the general issue by consent, with leave to offer in evidence any matter or thing that if specially pleaded would constitute a good defense."

The defendant(appellant) testified, in substance, that the horse ran or jumped into his then standing automobile, and that the damage thus done to the automobile was $80.One tendency or effect of this evidence was to refute the plaintiff's theory of negligent (simple) driving of the car by the defendant.After the court had concluded the oral instruction to the jury, counsel for defendant called the court's attention "to the defendant's right to recover," evidently on the idea that defendant had interjected by his evidence a right in the nature of recoupment or set-off.The declination of a trial court to instruct the jury in consonance with, or on the subject of verbal suggestion by counsel presents no matter for review on appeal, even though the suggestion was well founded.McPherson's Case, 198 Ala. 5, 7, 73 So. 387, stating the exclusive method prevailing in this state.

Special charge "No.A," refused to ...