The plaintiff recovered a judgment in the court below, and the trial court granted defendant's motion for a new trial, and the plaintiff appeals.
It is well settled that, when the trial court grants a motion for a new trial, the same inferences and presumptions in favor of his action in doing so are indulged as would be in case he refused a motion for new trial, and this is so whether he assigns the proper reason for doing so or not.
It is settled law by the decisions of a majority of the states as well as the United States Supreme Court that, when the master is sued jointly with his servant for the misfeasance or malfeasance of said servant, and is liable for the conduct of said servant under the doctrine of respondeat superior, a verdict in favor of such servant entitles the master to have the verdict against him set aside. A Supreme Lodge v. Gustin,202 Ala. 246, and numerous cases cited on page 252, 80 So. 84. Therefore, as the second count was against the defendant railroad and its engineer, and whose negligence was the gravamen of the action, and the jury found against the railroad and acquitted the engineer, it was the duty of the trial court to set aside the verdict upon a proper motion.
The case of A. C. L. R. R. v. Carroll, 208 Ala. 361,94 So. 820, is in no wise in conflict with the authority above cited and cases referred to in said Gustin Case. There the suit was against the railroad, the town of Ozark, and Dowling, the agent of said town, who was the superintendent of its electric plant. Dowling testified that he strung the wires connecting the depot of the railroad with the town wires, and at the request of the railroad, but without cost. This in no sense made him the agent of the railroad, as he was doubtless doing this to get a customer for the light plant, but, conceding that he was an agent of the railroad, it was only temporary, and for the limited purpose of stringing the wires, and it terminated when this was done. A careful reading of the complaint will disclose that as against the railroad it does not proceed upon any negligence of Dowling in stringing the wires, but upon the negligence of the servants of the railroad in subsequently permitting said wires to get in a dangerous condition. The proof also showed that what negligence that was chargeable to the railroad grew out of conditions which arose subsequent to the stringing of the wires, and we held that the discharge of Dowling was not an act of which the railroad could complain. Had Dowling been the agent through whom liability was placed on the town of Ozark, the town should have been discharged, but said town did not even appeal.
It is insisted, and brought out in the opinion of Justice THOMAS (now the dissenting opinion), that the action of the trial court should be reversed, for the reason that the jury may have found for the plaintiff under count 4, which charged wanton misconduct to a servant or servants other than the engineer. As we understand, inferences and presumptions should be in favor of the trial court, and should not be indulged for the purpose of a reversal. Had the jury specified count 4 in their verdict that would have excluded count 2, but the jury found a general verdict. Moreover, the record fails to disclose a written or oral instruction informing *Page 494 the jury that they could not find against the railroad, unless they also found against the engineer, and it would be a rather violent presumption that the verdict was based on count 4 alone.
In this discussion we do not wish to hold or intimate that there was sufficient evidence to take the case to the jury under count 4 upon the idea that the fireman was guilty of wanton misconduct.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., concur.