Goad v. Harris

92 So. 546, 207 Ala. 357, 1922 Ala. LEXIS 79

Opinion

SAYRE, J.

Appellees sued appellant in an action for damages alleging in several counts that appellant, while in possession of appel-lee’s auto truck, as bailee for trial pending negotiation for a purchase, had negligently misused and abused the truck, whereby it was greatly damaged. Counts in trover were added. The court charged out the counts in trover, and the jury found for defendant on the remaining counts. But on a motion for a new trial the court set aside the verdict and awarded a venire 'de novo. Thereupon defendant appealed.

The action of the court on the motion may be justified — must be — for the reason that the court had committed error in charging out the trover counts. There was evidence that the use made by defendant of the truck constituted a material departure from the use contemplated by the bailment, and that in so doing defendant grievously misused and abused plaintiff’s truck, and on this evidence plaintiff’s right to recover as for a conversion should have been submitted to the jury. Weller v. Camp, 169 Ala. 275, 52 South.. 929, 28 L. R. A. (N. S.) 1106; Fail v. McArthur, 31 Ala. 26; Glaze v. McMillion, 7 Port. 279.

Or, if the trial court was of opinion that the great weight of the testimony was in favor of plaintiff’s case under the counts for negligence, and so set aside the verdict for that reason, this court could not properly interfere. Cobb v. Malone, 92 Ala. 630, 9 South. 738.

Affirmed.

ANDERSON, O. J., and GARDNER and MIDDER, JJ., concur.