Lindsay v. Hackney ( 1968 )

PER CURIAM.

Mary Jane Hackney, a minor, suing by her father and next friend, sued the defendants, William B. Lindsay, Henry Kelly McBride and H. R. McBride, for personal injuries. Mary Jane was struck while a pedestrian by an automobile owned by William B. Lindsay and being operated by Henry Kelly McBride, the minor son of H. R. McBride.

In addition to this law suit Mary Jane’s father filed a suit for loss of services of his minor daughter against the same defendants. The two cases were consolidated and tried together under the provisions of Tit. 7, § 221, Code 1940.

The jury having heard the evidence in both cases returned a verdict in favor of the defendants in Mary Jane’s case. It then returned a verdict in favor of the plaintiff, her father, in the loss of services case, fixing his damages at $300. The plaintiffs in each case then filed a motion for a new trial contending that a fatal inconsistency existed between the two verdicts rendered by the jury. This motion was granted and the defendants have appealed.

The issue then is whether or not when a case is consolidated for trial the rendering of inconsistent verdicts requires a new trial. We are confronted at the outset with Smith v. Richardson, 277 Ala. 389, 171 So.2d 96, in which this question was answered in the affirmative.. There is no question but that the verdicts rendered here are inconsistent. In one the jury found for the defendants; in the other it found for the plaintiff. The issue in each case was identical.

Since this question has already been decided in Smith v. Richardson, 277 Ala. 389, 171 So.2d 96, we reaffirm the decision in that case and affirm the action of the trial court in granting the motions ■for a new trial. Appellant cites and relies in part on Brown v. Parker, 217 Ark. 700, 233 S.W.2d 64. That case is not apt authority because there all the consolidated suits were independent actions for personal injuries, and none was a derivative suit as is one of the cases here.

Affirmed.

All the Justices concur except SIMPSON, J., who dissents.