Clover Creamery Co. v. Diehl

ANDERSON, J.

— The amended count 2, the only one upon which the case was tried, was not subject to the defendant’s demurrers.' It more than met the requirements of the rule as laid down in the case of A. G. S. R. R. Co. v. Crocker, 131 Ala. 585, 31 South. 561.

Nor did the trial court err in refusing the motion to strike because the amendment was made in black in stead of purple ink. That the amendment should be made in purple ink was a mere direction by the court, which it could and did waive by receiving it in black ink, and in declining to sustain the motion to strike.

This was a suit by an infant three years of age, and the contributory negligence of her parent was not available as a defense. This rule has been so often followed in this state that citation of authority is unnecessary. The trial court properly sustained the plaintiff’s demurrer to defendant’s plea 2.

On the other hand, if plea 2 is not to be'deemed one of contributory negligence, it is a mere attempt to escape a legal liability for the sole reason that the defendant’s negligent manager is the parent of the plaintiff, and which is, in the end, but an effort to make the child responsible for the negligence of the parent, notwithstanding he was the defendant’s manager of its plant and works. The cases relied upon by appellant’s counsel, to the effect that a child cannot recover from a parent for personal injuries, whether sound or not, are not applicable, in point or by analogy, to the present plea.

The insistence, in most instances, as to the ruling upon the evidence, amounts to no more than a repetition of the assignments of error, but we do not think that the trial court committed reversible error in ruling upon the evidence.

The injury caused the loss of one of the plaintiff’s hands and a part of the wrist, and we are not prepared to say that the verdict was excessive.

The judgment of the law and equity court is affirmed.

Affirmed.

McClellan, Somerville, and de G-raffenried, JJ., concur.