Hartley v. Fuller

84 So. 2d 124, 263 Ala. 695, 1955 Ala. LEXIS 722

• Court: Supreme Court of Alabama
• Decided: December 22, 1955
• Docket: 4 Div. 851
• Status: Published

Opinion

PER CURIAM.

This is an action by appellant against appellee for personal injuries received by plaintiff while riding as a guest of defendant in an automobile operated by defendant.

There was a jury trial, with verdict in favor of defendant; and plaintiff prosecutes this appeal.

The principal contention made by appellant is that the trial court committed reversible error in sustaining a demurrer to counts 1, 2 and 3, each separately and successively. The trial was eventually had on count 4, to which a demurrer was overruled.

We do not think that count 4 added allegations which imposed an" additional burden on plaintiff, and in it' she had the benefit of counts 1, 2 and 3. The ruling, if error, was without injury ' to plaintiff. See, Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

The only additional contention made by appellant is that the motion for a new trial should have been granted on account of the rulings on the demurrer, to which we have referred, and because the yerdict was contrary to the great weight of the evidence. But there was substantial evidence favorable to plaintiff and defendant, respectively. It was the province of the jury to accept one of the conflicting aspects to it. We see no reason to set aside the jury’s verdict. The judge trying the case refused to do so.

The judgment should be affirmed.

The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.

Affirmed.

LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur.