After the evidence was all introduced, the court verbally charged the jury with hypothesis to find for defendant, and then added, the form of your verdict will be, "We the jury find the issues in favor of the defendant." This should be treated as directing a verdict for defendant. Watts v. Metropolitan Life Ins. Co., 211 Ala. 404, 100 So. 812.
The record also shows that the court gave a charge at the request of defendant, with hypothesis, to find for defendant, and marked it given. Objection is now made, not argued on the original submission, that there was error in this oral charge (1) because it violated section 9507, Code, as a charge on the effect of the testimony, and (2) because it was mandatory in effect, and not on hypothesis. Not now considering the sufficiency of the argument of the question on original submission to justify its consideration on rehearing, nor other matters urged by appellee, we will answer the contentions on their merits.
If it was error to charge orally on the effect of the evidence without a written request under section 9507, Code, the same instruction given in writing cured that error. Gulf City Shingle Mfg. Co. v. Boyles, 129 Ala. 192, 29 So. 800; Gambill v. Cargo, 151 Ala. 421, 43 So. 866; Tobler v. Pioneer M. M. Co., 166 Ala. 482 (11), 52 So. 86.
And it is also well settled that where by the undisputed evidence plaintiff has not shown that he is entitled to recover on his complaint, the court may direct a verdict for defendant, and it is immaterial whether the jury believe the *Page 463 evidence or not. In either event plaintiff has not proven his complaint. Christian v. Stith Coal Co., 189 Ala. 500,66 So. 641; Bledsole v. Davis, 189 Ala. 325, 66 So. 491; Tobler v. Pioneer M. M. Co., 166 Ala. 482 (12), 52 So. 86; Sims v. Sims, 2 Ala. 117 (3); Harris v. State, 215 Ala. 56, 57 (7),109 So. 291; Jarrell v. Birmingham Water Works Co., 179 Ala. 503,60 So. 835; 27 Alabama and Southern Dig., Trial, 168, 169.
When plaintiff fails to make out his case, there is no prejudicial error in directing a verdict for defendant without written request. Dorough v. Ala. Great So. R. Co., 221 Ala. 305,128 So. 602; Louisville N. R. Co. v. Jenkins, 196 Ala. 136,72 So. 68.
The burden was on plaintiff to prove that insured died from an injury sustained solely through external, violent, and accidental means, as was alleged in the complaint. The only evidence in the case was introduced by plaintiff, and from it, as we pointed out, the jury was not authorized to find that his death was so caused. Plaintiff, therefore, could not properly recover, and he sustained no injury by the direction of a verdict for defendant, in whatsoever manner it may have been requested and given.
Rehearing denied.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.