Southern Ry. Co. v. Melton

47 So. 1008 | Ala. | 1908

DOWDELL,, J.

The complaint, after amendment was not. open to the grounds of demurrer stated. In each of the counts the relationship of passenger and carrier was shown,, as also the duty for the alleged violation of which the suit Avas brought. A substantial cause of action Avas stated.

The Avords “put off the train,” Avhere they are used in the complaint and the connection in which they are used, were not intended to convey the idea of any forcible ejection. It is plain from the reading of the complaint that the expression in the connection employed implies nothing more than that the plaintiff got off the train in response to the invitation of the conductor and the statement by him that it was her station. The insistence, therefore, that there was a material variance in this respect between the allegation and the proof, is without merit.

The defendant filed three pleas; the first two being the general issue, and the third a special plea. A demurrer was interposed to the 3rd plea, but the record does not show that any action was taken by the court- on the demurrer. The judgment entry recites that “issues was joined on the pleadings.” From this it Avill be presumed on appeal that the demurrer avrs abandoned and that issue was joined on the third plea. The evidence without dispute supported this plea, and on the undisputed evidence the defendant was entitled to the general charge as requested in writing. The rule is too well settled to call for citation of authorities that when issue is taken on an inmaterial plea, and the plea is proven, the defendant is entitled to judgment in his favor: ■

Never sed and remanded.

Tyson, O. J., and Anderson and McClellan, JJ./-concur.