Opinion
6 Div. 277.
May 19, 1921.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Thomas J. Judge, of Birmingham, for appellant.
Under the evidence, the court erred in rendering a judgment condemning the car, but should have rendered judgment for the claimant. 203 Ala. 90, 82 So. 104; 203 Ala. 517, 84 So. 760.
Harwell G. Davis, Atty. Gen., for appellee.
No brief reached the Reporter.
It does not appear that the testimony in this case was heard orally by the trial court, and hence the finding of that court is not supported by any consideration of its superior facilities for estimating the credibility of the testimony offered.
In view of the proper and legal use made of this car by Howard on previous occasions, when borrowed by him from Mrs. Glass for the same ostensible purpose, we do not think she was put upon notice that he might use it differently and illegally on the occasion in question, merely because she knew of his previous offense in the use of his own car. The facts of this case, in substance and legal effect, are not distinguishable from those exhibited in the recent case of In re Gattina, 203 Ala. 517, 84 So. 760, wherein the evidence was held insufficient to support a decree of condemnation.
While the law should be strictly enforced by the courts, it must not be so harshly administered as to work a condemnation of property upon the mere suspicion of its owner's connivance in its unlawful use.
Let the judgment of condemnation be reversed, and a judgment here rendered in favor of the claimant.
Reversed and rendered.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.