Doss v. Wadsworth Red Ash Coal Co. , 185 Ala. 597 ( 1914 )

McCLELLAN, J.

The action is by the appellant against the appellee. The verdict was for the plaintiff. Upon the hearing of the motion for new trial, the court set aside the verdict and judgment. It is to review that action this appeal is prosecuted by the plaintiff.

There were four counts in the complaint. The fourth was withdrawn pending the trial. The first count was framed under the first subdivision of the liability act Code 1907, § 3910. The second and third counts were drawn under the second subdivision of the liability act. The defenses relied on, aside from the general traverse of the counts, were contributory negligence and assumption of risk. Among other pleas was that numbered 11. The report of the appeal will contain it. It does not appear to have been assailed by demurrer, or otherwise. As appears, this plea was addressed to the counts of the complaint “separately and severally.” The amendment of the complaint by striking out or withdrawing count 4 did not require the refiling of this or any other pleas that were distinctively addressed to each separate count of those left in the complaint after count 4 was stricken or withdrawn. Such is the rule with respect to demurrers. — B. R., L. & P. Co. v. Fox, 174 Ala. 657, 668, et seq., 56 South. 1013. We see no reason why a different principle should govern when the whole effect of the amendment is to eliminate a distinct count. The judgment entry recites: “Whereupon the plaintiff withdrew its demurrer to plea No. 9, and the defendant withdrew plea No. 7. Whereupon the defendant, by leave of the court, filed to the complaint plea No. 11, as shown by separate paper writing on file. Whereupon plaintiff withdrew demurrer to pleas 2 and 4 of the defendant, and whereupon after the evidence was all in, the plaintiff amended his complaint by striking therefrom count No. 4. Whereupon issue was joined on counts Nos. 1, 2, and 3 of the complaint as constituting the complaint as last amended. Whereupon came a jury,” etc.

This court has adopted the rule that the judgment entry is, when clear in its recitals, the controlling source of information as to what pleading constituted the issues upon which the trial was had. — Providence, etc., Co. v. Pruett, 157 Ala. 540, 546, 547, 47 South. 1019; Donnelley’s Case, 130 Ala. 132, 30 South. 452; Jackson's Case, 142 Ala. 55, 37 South. 920. In the Pruett Case (supra) it was said: “If the judgment were silent as to the issues, or so vague, indefinite, and uncertain in its recitals as not to inform, then it is permissible to look elsewhere to determine what were the issues.” In that case the entry affirmed the joinder in issue upon four numbered pleas of a greater number of pleas, following a general withdraAval of demurrers, amendment, and (by the court) rulings on demurrers to the designated pleas; and immediately succeeding the recital was: “And issue being now joined,” etc.

We are unable to interpret the recital here as restricting the issues to those, alone, made by a general traverse of counts 1, 2, and 3.

The entry must be considered in all its parts, and with reference to the pleading to Avhich it refers. In parts of the entry preceding that quoted, the court had considered and passed upon demurrers to ten pleas, addressed to the four counts separately and severally. Plea 11 was, by leave of court, filed later than the ten preceding it. In the light of the whole entry we cannot affirm that it recites, or even undertook to recite, that the sole issues were those made by the general traverse of counts 1, 2, and 3. It is recited that issue was joined on those counts; but in the state of the entire entry and record as to pleading this is far from reciting that the issues thus made were the only ones tendered dr taken. Furthermore, it is not at all certain that the phrase, “issue was joined on counts Nos. 1, 2, and 3,” did not intend to express and did not express the issues made by the special pleas separately interposed to- those counts. We therefore view the entry as silent in respect of the issues made by the special pleas unstricken. In this state of the entry we may look elsewhere. The bill of exceptions leaves no room for doubt that the matter of such pleas, including plea 11, was of the issues actually litigated. In given charge D express reference is made to “special pleas,” and a finding for the defendant predicated of “one or more” of them being sustained by the evidence. The entire trial manifests the presence of these special defenses as raising issues therein. We therefore review the trial court’s action in granting a new trial, as the propriety thereof is affected by the presence of the unstricken special pleas, one of which is plea 11.

After a careful consideration of the evidence, our conclusion is that the plaintiff’s own testimony established the facts averred in plea 11. There was no demurrer or other objection taken in the court below to this plea (11). Its sufficiency cannot now be and is not considered. If a pleader characterizes an averred state of fact as showing contributory negligence, and the pleading is not objected to and unavoided by replication, and trial is had thereupon, uncontradicted proof of the facts averred entitles the defendant, under the present system, to a verdict.

The judgment awarding the new trial is hence affirmed.

Affirmed.

Anderson, C. J., and Sayre and Somerville, J.J , concur.