Appellant brought suit against appellee for damages sustained by appellant's intestate (Elzetta Kidd) as a result of a collision between an automobile owned and operated by one Louis Davis and the automobile of appellee, which was being operated by his agent or employee, and in which appellant's intestate was riding as a guest of appellee. The case was submitted to the jury on the complaint, as amended, which charged appellee with wanton misconduct, in that his agent or employee, while acting within the line and scope of his employment as such agent or employee wantonly injured appellant's intestate by wantonly driving the automobile of appellee upon or against the automobile of one Davis.
Appellant assigns as error the refusal of the trial court to give the following written charge requested by appellant:
It is axiomatic that a case will not be reversed on the refusal of a requested charge where the same principle of law is substantially covered in the court's oral charge. Such a refusal must be found, after an examination of the entire cause, to have probably injuriously affected the substantial rights of the parties. Title 7, § 273, Code 1940; Helms v. State, 254 Ala. 14, 47 So.2d 276; Bahakel v. Great Southern Trucking Co., 249 Ala. 363, 31 So.2d 75.
Of course it would have made our task easier if the trial court had used the approved terminology, "wilfully and corruptly", but we find nothing to indicate that the court's refusal to give the requested charge injuriously affected the substantial rights of appellant, since the court's oral charge substantially covered the subject matter thereof. Bahakel v. Great Southern Trucking Co., supra.
In addition, this court has repeatedly urged caution in the application of the maxim "falsus in uno, falsus in omnibus". Tindell v. Guy, 243 Ala. 535, 10 So.2d 862. The prevailing attitude of the courts toward such instructions is "one of tolerance and sufferance. The instructions labor under faint praise and are generally regarded as of little assistance to the juries." 4 A.L.R.2d 1078. Professor Wigmore on Evidence, § 1008, p. 675, states his view as follows:
We think it would be fractious to reverse the case in the circumstances stated and so hold.
In addition to this assignment, there are but two others. The first of these takes objection to a statement made by appellee's
Moreover, it is well settled that argument of counsel is a matter which rests in the sound discretion of the trial court and it is not our province to interfere unless it has abused its discretion. Southern Railway Co. v. Jarvis, 266 Ala. 440, 97 So.2d 549; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So.2d 331. The trial court here stated to the jury, "We are not trying any case except the one right here". We fail to apprehend any error here.
The only remaining assignment complains of the trial court's overruling appellant's motion for new trial. The ground argued was that the verdict was against the great weight of the evidence. It should be noted that this case was submitted to the jury on a count charging wanton misconduct only. The jury found for the defendant on this count. Its finding should not be disturbed in the absence of substantial cause. The evidence was in conflict and we cannot say the verdict was palpably wrong or unjust. Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Bell v. Nichols, 245 Ala. 274, 16 So.2d 799.
GOODWYN, MERRILL and COLEMAN, JJ., concur.