Mullins v. Lemley , 205 Ala. 593 ( 1921 )

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 defendant, sought the instruction of the jury in accordance with the suggestion before mentioned. The agreement — recited in the quotation ante from the judgment entry — for the introduction of any matter or thing, specially pleadable, constituting a "good defense," did not include a counterclaim, a cross-action by defendant, upon which a judgment over, as the charge stipulates, might be awarded the defendant against the plaintiff. Yarger v. C., M. St. P. R. R. Co., 78 Iowa, 650,43 N.W. 469; Skains v. Barnes, 168 Ala. 426, 53 So. 268. The special request for instruction was properly refused.

The meritorious issues tendered by count 1 were due to be submitted to the jury. This was done.

There is no error in the record.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.