Beddingfield v. New Orleans & N. E. R., 70 So. 402

Beddingfield v. New Orleans & N. E. R.

70 So. 402 | Miss. | 1915

Smith, C. J.,

delivered the opinion of the court.

The release here in question is not a general, but is a limited, one, covering only such damages as resulted to appellant from the bruising of his shoulder, and therefore does not cover the injuries complained of in the declaration, which injuries it is alleged in the replication were unknown to the parties thereto at the time the release' was executed. Texas & Pacific R. R. Co. v. Dashiell, 198 U. S. 521, 25 Sup. Ct. 737, 49 L. Ed. 1150.

We are requested, however, by counsel for appellee to extend the demurrer back to the declaration and sustain it for the reason that the declaration is defective in two particulars: .First, it does not allege “that the hammer was loose on its handle, or that the handle was shivered and shattered when it was furnished by the company for use by Beddingfield, the decedent, and his co-servant, Smith;” and, second, it does not allege that the deceased left neither widow nor children surviving him.

*321The first of these objections, if presented to us for decision by this record, is without merit; for the declaration expressly alleges that appellee “negligently and carelessly furnished the said Joe Smith with a sledge hammer to be used in cutting off the top of said bolt, the handle of which said hammer was defective in this, that it was shivered and shattered, which caused said sledge hammer to be and was loose on the handle.”

While it is true that the declaration does not expressly allege that Beddingfield died leaving neither widow nor children surviving him, it does allege that appellants “are the brothers and sisters, and only brother and sister, and heirs, and the only heirs, at law of W. H. Beddingfield, deceased. ’ ’ If appellants are the only heirs at .law of the deceased, it necessarily follows that he did not leave surviving him either widow, children, or descendants of children; and, while this allegation is defective in that it is merely a conclusion, of law, nevertheless such defect would have been cured by verdict. Mississippi Code of 1906, section 808. Consequently the declaration is not so defective “that judgment according to law and the right of the cause cannot be given,” so-that the defect therein complained of can be availed of by -demurrer only when specifically assigned as a ground •thereof. Mississippi Code of 1906, section 754. The demurrer, therefore, cannot be extended back to the declaration. Shoults v. Kemp, 57 Miss. 218.

Reversed and remanded.