Tallassee Falls Mfg. Co. v. Taunton , 18 Ala. App. 52 ( 1921 )

This is the second appeal in this cause. Tallassee Falls Mfg. Co. v. Taunton, 16 Ala. App. 578, 80 So. 152.

When this case was tried again in the lower court, demurrers were sustained to counts 1, 2, 3, 4, and 5 of the complaint in conformity to the opinion rendered by this court.

Thereupon the complaint was amended by adding counts A and B, and demurrers to these counts were overruled, and the case was tried upon counts A and B. The defendant pleaded the general issues in short by consent, with leave to prove any matter that might have been specially pleaded. From a verdict and judgment for plaintiff in the sum of $1,000, this appeal is taken.

The reporter will set out counts A and B and also the demurrers on pages 11 and 12 of this record.

We are of the opinion the ground 6 of the demurrers to count B was good, and should have been sustained. This count was drawn under subdivision 2 of the Employers' Liability Act, and failed to aver that the negligence of the master mechanic arose while in the exercise of his said superintendence. To quote subdivision 2:

"When the injury is caused by reason of the negligence of any person in the service of the master or employer, who has any superintendence intrusted to him, whilst in the exercise ofsuch superintendence." (Italics ours.)

— demonstrates that the count was subject to this ground of demurrer. We cannot assert, as a matter of law, that this ruling did not result in injury to the defendant. We have examined the evidence in the record, and we are not prepared to say that, with count 2 eliminated, the result would have been the same.

There was no error in the portions of the oral charge excepted to, or in the refusal of the court to give the charges requested in writing by the defendant. The oral charge was in conformity with the former opinion of this court.

Charges 5 and 8, requested by the defendant, were fully covered by the court's oral charge. Charge 12, requested in writing by defendant, was faulty, in that it assumed the jury entertained in their minds "considerations of mere sympathy or prejudice for or against either of the parties.

"For the error pointed out, the judgment of the circuit court is reversed, and the cause remanded.

Reversed and remanded.

Affirmed June 7, 1921, on authority of Ex parte Taunton, In re Tallassee Falls Mfg. Co. v. Taunton, 206 Ala. 55, 89 So. 86