113 Ala. 636 | Ala. | 1896
The action is in trespass. There is no averment in case in the declaration. When two or more parties are guilty of a joint trespass, they may be sued jointly or severally in one action.-Smith v. Gayle, 58 Ala. 606. A complaint which avers that A. B. and C. D. assaulted E., imports that the assault was joint. Evidence that one of the defendants committed an assault at one time, and the other at a different time, would not be admissible in support of the averment, and authorize a joint recovery.
A count quan¡ clausum fregit, may be joined with a count for trespass on the person, in the same complaint.
Each of the fifth and sixth counts of the complaint count upon a trespass upon land, and for assaulting and boating the plaintiff &c. The defendants’ demurrer raises the question as to whether the two claims as averred can be united in the same count. We are of the opinion that a plaintiff may aver a trespass upon land in a count for trespass upon the person, and recover for both, when the averments are such as to show but one transaction. But when the count shows, that damages are sought for a trespass upon the land and for a trespass upon the person, and the pleadings fail to show that they are of the same transaction, the two cannot be united in one count.-26 Am. & Eng. Encyc. of Law, pp. 627-28, and note; Wright v. Chandler, 4 Bibb (Ky.) 422; Floyd v. Floyd, 4 Rich. Law (S. C.) 23; McClees v. Sikes,
Construing the pleadings most strongly against the pleader, we are of opinion counts five and six were subject to demurrer.
Eeversed and remanded.
