Guiler v. United States C. I. P. & F. Co.

197 Ala. 233 | Ala. | 1916

ANDERSON, C. J.

(1, 2) The original complaint, consisting of count 1, proceeded under the common law and was not subject to the grounds of demurrer interposed to same, and which the trial court erred in sustaining. The complaint charged that the injury sustained by the plaintiff was the proximate result of the act of a fellow workman while in the discharge of a duty connected with his employment, and which said duty he was incompetent to perform, and that his said incompetency was known to the defendant. — First Nat. Bank v. Chandler, 144 Ala. 286, 39 South. 822, 113 Am. St. Rep. 39. It may be that the complaint should aver that the plaintiff was rightfully where he was when injured, that is, in the discharge of his duty or at a place in defendant’s plant where he had a right to be when injured, but this defect was not pointed out by any of the demurrers to this count. — Section 5340, Code 1907. As each of the amended counts was added to meet the adverse rulings of the trial court, and as the original complaint was not subject to the demurrer interposed to same, it is needless to consider the demurrers to said amended counts.

(3) We think that the judgment entry sufficiently shows that the adverse rulings on the pleading caused the plaintiff to take a nonsuit and to authorize a review of the action of the trial court thereupon under section 3017 of the Code. It is true the nonsuit was not taken until after the trial court declined to let the plaintiff further amend his complaint, and it may be that the action in declining to allow the last amendment should be presented by a bill of exceptions, but there would have been no occasion to amend had the trial court not improperly sustained the demurrer to the complaint, but the ruling of the court in sustaining the demurrer was the cause of the nonsuit. This holding is not in conflict with the case of Engle v. Patterson, 167 Ala. 117, 52 South. 397, as followed and explained in the case of Berlin Mach. Wks. v. Ewart L. Co., 184 Ala. 272, 63 South. 567. In the Engle Case, supra, after the ruling upon the pleading, the trial was proceeded with and an adverse ruling upon the evidence caused the nonsuit, and we held that, as the parties had gotten beyond the pleading and did not take a nonsuit until there was an adverse ruling upon the evidence, the ruling upon the pleading did not cause the nonsuit. Here we have no such conditions as was presented in the Engle Case, supra.

We think that the appellant’s brief is sufficient to warrant a consideration of the rulings assigned as error, and complies with the spirit, if not the letter, of the rule. It does not state the facts or history of the case, but there were no facts to state, and but one legal proposition to discuss, which we think is so presented and argued as to inform the court and counsel for appellee as to what the legal proposition is and the argument and authorities in support of same.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Mayfield, Somerville, and Thomas, JJ., concur.