On Rehearing.
Counsel for appellant in their brief in support of appellant’s application for rehearing has requested that we extend our opinion to cover a point not discussed in our original opinion. We are glad to comply, *412having omitted the point in our original opinion because in our opinion the point was without merit.
The point relates to assignments 3, 6, 7, 10, 11, and 16 in so far as these assignments relate to the sufficiency of the evidence to support the verdict.
Counsel for appellee contend that the evidence is insufficient in that it does not establish that the plaintiff below, Four Wheels, Inc., a Corporation, was the owner of the automobile injured in the collision.
The evidence shows that the witness Blackwood was an employee of Wyeth Laboratories, and as such drove and operated the automobile in question. In his direct examination Mr. Blackwood testified as follows :
“Q. Who was the owner of the automobile you drive? A. It was a rented car, owned by Oldsmobile, Incorporated, out of Chicago.”
In his original brief counsel for appellee correctly pointed out that just prior to this testimony the court had admonished the witness to speak louder because of the operation of the air conditioner.
However, the record shows the following during the cross examination of the witness Blackwood:
“Q. Now, Mr. Blackwood, at this time when you were operating this car you were operating the automobile in connection with your business as a drug salesman? Is that correct? A. Yes, sir.
“Q. And that was Wyeth Laboratories that you were employed by ? A. Yes, sir.
“Q. Were you operating the car in the business of Four Wheels, Incorporated, in any capacity? A. No, sir.
“Mr. Norred: I believe that is all I have to ask Mr. Blackwood.
“Your Honor, I would like to call this to the court’s attention, that there is a variance between the pleading and the proof, that the complaint alleges that the automobile involved was being operated by the plaintiff, when the evidence shows it was not being operated—
“The Court: What?
“Mr. Norred: That the operator [sic] involved and for which damages are claimed was being operated by the plaintiff, and the proof shows that the automobile was not being operated by the plaintiff, that it was being operated by Mr. Blackwood who had rented the automobile and was not an agent of the plaintiff.
“Mr. Albea: I think the evidence clearly states that the plaintiff owned this automobile and this was a rental arrangement between the Wyeth Laboratories and the Four Wheels corporation, so they certainly' have a pecuniary interest in this matter.
“The Court: Well, I will look at the complaint and see what I want to do about it at the noon recess.”
It is to be noted that the only variance pointed out in the motion related to whether the automobile was being “operated by the plaintiff.” The complaint of course asserted that the damages occurred “while plaintiff’s automobile was being operated by one James M. Blackwood,” etc. Thus there was no variance within the grounds asserted in the motion, and we agree with the statement of counsel that it appears that the parties, their counsel, the judge, and the jury understood the evidence as to the ownership of plaintiff’s automobile.
Further, this matter is squarely within the influence of Circuit Court Rules 34 and 35, Rules of Practice in the Circuit and Inferior Courts of Common Law Jurisdiction, to be found in Title 7, 1940 Code of Alabama, pages 1035, 1037.
*413As stated by the late Rice, J., in St. Louis-San Francisco Ry. Co. v. Poor, 20 Ala.App. 582, 104 So. 343, wherein the alleged variance arose out of testimony that the damage had been caused by the “Frisco,” wherein the complaint was filed against the “St. Louis and San Francisco Railway Company, a corporation:”
“ * * * all that appellant argues in its able brief in this regard, as grounds for reversal is fully and adversely (to it) answered by Circuit Court Rule 34 (175 Ala. XXI), which we think was promulgated to meet just such contentions as that now here made.”
Application overruled.