The charge made the basis of the forty-sixth ground of defendant's motion for a new trial submits to the jury *Page 62 the question of defendant's negligence in turning his car over to a known incompetent driver, as a basis for plaintiff's recovery. There was evidence tending to sustain the same, as shown in the opinion above, and the charge was not abstract. But the complaint did not seek recovery upon such alleged negligence as stated in the charge. The charge, therefore, submitted to the jury a ground of defendant's liability not in issue under the pleadings. This constitutes reversible error under the decisions of this court. Louis Pizitz Dry Goods Co. v. Yeldell, 213 Ala. 222, 104 So. 526; Bradley v. Deaton,208 Ala. 582, 94 So. 767; Pratt Consolidated Coal Co. v. Davidson,173 Ala. 667, 55 So. 886; Standard Oil Co. v Davis, 208 Ala. 565,94 So. 754; Howard v. Brannan, 188 Ala. 532, 66 So. 433.
Upon a reconsideration, a majority of the court has reached the conclusion that the giving of said charge for the plaintiff justified the trial court in granting a motion for a new trial, and the judgment granting the same should be affirmed.
The rehearing is therefore granted, the judgment of reversal set aside, and the judgment of the court below affirmed.
Rehearing granted; judgment affirmed.
All the Justices concur, except SAYRE, J., who dissents.