61 So. 914 | Ala. | 1913
The amended complaint, by which we mean count 2, upon Avhich the- case went to the jury, was framed for the statement of a case under subsection 2 of the Employer’s Liability Act, section 3910 of the Code, which allows the employee to recover Avhen his in
■ We do not know why the assigned grounds of demurrer should have been sustained to pleas 7, A, and B, as answers to the second count of the complaint, or why, after the judgment affirming the insufficiency of these pleas, the demurrer to plea L Avas overruled. But that is immaterial, for any defense that could have been proved under any of the pleas held bad was provable under plea L, and there is no indication in the record that the court in any way limited defendant’s effort to prove the last-named plea. Sustaining the demurrers to the several pleas first namd was therefore error without injury.
On reading the testimony in this cause we are convinced there was error in overruling defendant’s motion
We are not unmindful of the rules by which this court is governed in the determination of questions of this character. The trial judge, who hears the witnesses, and sees their demeanor on the stand, has a better opportunity than we can have to judge of the weight and credibility of oral testimony, and on appeal great respect is paid to his judgment. But this court has not renounced its duty nor neglected its power to revise the verdicts- of juries and the conclusions of trial judges on questions of fact, where, in our opinion, after making-all proper allowances and indulging all reasonable intendments in favor of the court below, we reach a clear conclusion that the finding and judgment are wrong.— Gassenheimer v. Western of Alabama, 175 Ala. 319, 57 South. 718, 40 L. R. A. (N. S.) 998; Birmingham National Bank v. Bradley, 116 Ala. 142, 23 South. 53; Southern Railway v. Lollar, 135 Ala. 375, 33 South. 32. We are clear to that conclusion in this case, and
We will add that we have not considered the motion to dismiss the appeal, for the reason that the cause appears to have been submitted in the Court of Appeals, to which it first went, on its merits only. There is no notation of a submission of the motion to dismiss on the transcript of the record sent to this court from the Court of Appeals. But it appears that in fact the motion to dismiss was made in the Court of Appeals on the seventh day after the appeal had been submitted for decision. In these circumstances the only possible ruling is that the objection to the consideration of the appeal has been waived.
Reversed and remanded.