HARWOOD, Presiding Judge.
Suit below sought damages for injuries to plaintiff's automobile resulting from a collision with a truck owned by defendant and driven by John Grimmett, allegedly a servant or agent of the defendant at the time of the collision.
The jury returned a verdict in favor of the plaintiff and assessed his damages at six hundred dollars.
Judgment was entered pursuant to the verdict, and defendant's motion for a new trial being denied, an appeal to this court was perfected.
Appellant's assignment of error No. 1 asserts that the court below erred in denying his motion for a continuance, and this assignment is argued in appellant's brief. However, the record filed in this court fails to show any motion for a continuance. There is therefore nothing before us for review in this regard.
In the trial below the defense was directed toward showing that Grimmett was an employee of Harold York, a son of the appellant, and that Harold York was an independent contractor engaged in logging operations, the logs being hauled to appellant's sawmill.
In this connection counsel for appellant argue that the court erred in refusing appellant's request for the affirmative charge, and in overruling his motion for a new trial because, they contend, the appellee failed to show to the required degree that Grimmett was a servant, or agent of appellant at the time of the collision.
The evidence presented by the plaintiff tends to show that immediately after the collision Grimmett left and returned shortly with the appellant and Harold York. Mr. A. E. Cooper, Chief of Police of Notasulga, was also present at this time, along with several other men.
For the defense Chief of Police Cooper testified he heard some of the conversation between the appellee and appellant; that he knew that appellant owned the truck in question, and he did not ask Grimmett for whom he drove, nor did he hear appellant say that Grimmett was his driver.
The appellant denied that he had ever stated that Grimmett was his driver, or worked for him.
The appellant, and Mr. Harold York, and Mr. Wayne York testified to the effect that the truck was owned by the appellant, but was used by Mr. Harold York in his logging operations. Grimmett was an employee of Harold York in these operations, which were carried on by Harold York as an independent contractor; the appellant exercised no supervision over these operations, but paid Harold York so much per thousand for the logs hauled to appellant's sawmill.
The alleged statement by the appellant, as testified to by witnesses for the plaintiff to the effect that Grimmett was his driver, was sufficient, if believed by the jury under the required rule, to establish Grimmett as a servant or agent of the appellant. The denial by appellant that any such statement was made merely raised a conflict solely within the province of the jury to resolve.
The court therefore did not err in its refusal of appellant's request for the affirmative charge, nor in denying appellant's motion for a new trial.
Counsel for appellant assert that there was insufficient proof of the amount of damages to support the verdict and judgment.
The appellee testified that he had bought and sold automobiles, and was familiar with the market value of automobiles. He testified that the reasonable market value before the collision was $1,500, and its reasonable market value after the collision was $650. No evidence contradicting this testimony as to damages was presented. The appellant's testimony furnished a sufficient basis upon which the jury could base its award of $600 damages. Baxter v. Wilson, 35 Ala.App. 196, 45 So.2d 474.
During the cross examination of the appellant the record shows the following:
In rebuttal to this testimony the appellee was recalled as a witness and testified:
Counsel for appellant contends that the rulings in the above instances constituted error, in that it was a showing of an attempted compromise.
Evidence tending to show an attempted compromise is ordinarily inadmissible. Globe Tailoring Co. v. Seibold, 9 Ala.App. 143, 62 So. 384; C. W. Zimmerman Mfg. Co. v. Dunn, 163 Ala. 272, 50 So. 906.
In the first place, we do not regard the above evidence as being an attempt to compromise. Actually there was no offer made by appellant, but only an instruction to obtain two estimates of the amount of damage. The following quotation from Matthews v. Farrell, 140 Ala. 298, 308, 37 So. 325, 328, we think aptly demonstrates that the above testimony showed an admission, rather than a proposition of settlement:
It has also been held that where, in an attempt to arrange a settlement of a controversy
Clearly the jury could reasonably infer a tacit admission of liability from appellant's instructions to appellee to have two estimates made of the damage to appellee's automobile. One would hardly give such instructions in the absence of all notion of liability.
Further, the evidence sought was relative and material to rebut appellant's claim that Grimmett was not his servant or agent, but rather was the employee of his son, an independent contractor. Being admissible in this aspect the court below would not be cast in error by us for overruling the general objection interposed.