Opinion
6 Div. 354.
March 19, 1925. Rehearing Denied April 16, 1925.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
William Vaughan, of Birmingham, for appellant.
Ralph W. Quinn and William F. Spencer, both of Birmingham, for appellee.
Counsel argue, respectively, the questions raised, but without citing authorities.
This court has repeatedly condemned the practice of moving to exclude all of the evidence by the defendant and requesting the direction of a verdict or the general affirmative charge before resting his case, and the trial court will not be reversed for refusing such a motion. Stewart Bros. v. Ransom, 200 Ala. 304, 76 So. 70. Moreover, the plaintiff's evidence made out a prima facie case and all the evidence justified the refusal of the general charge at the request of this defendant as to the only count that went to the jury, count 2 having been charged out.
Charges 5 and 6, requested by the defendant, were properly refused, as there was evidence tending to establish negligence and the other facts therein set forth.
Charge 7, requested by the defendant, was well refused because of the use of the word "believe" instead of "reasonably satisfied." Farmers' Bank v. Hollind, 200 Ala. 371, 76 So. 287. The substance of this charge, however, was covered by given charge 12, which properly set out the degree of proof or the state of mind of the jury.
What purports to be defendant's refused charge 4, as set out in the bill of exceptions, appears to have been given as presented by the record proper, but, should they be considered as separate charges, the giving of one neutralized the refusal of the other.
The verdict was in favor of the codefendant Tujague Importing Company and against this appellant, the only other defendant, and named in the verdict as "Oliver's Garage," and which was described in the complaint as a corporation, and the verdict was sufficient to support the judgment as rendered against "Oliver's Garage, a corporation."
The verdict was not so contrary to the great weight of the evidence as to place the trial court in error for refusing the motion for a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738. Nor was the verdict, as reduced by the trial court and accepted by the plaintiff, so excessive as to not be warranted by the evidence or to indicate passion or prejudice on the part of the jury.
The trial court did not err in declining to consider the affidavits of Davis and Wetherington offered by appellant in support of its motion for a new trial. They were merely cumulative of the facts developed and contested upon the main trial, and no reason or excuse was shown why these witnesses could not have been used at the trial.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.