Gray Eagle Coal Co. v. Lewis

49 So. 859, 161 Ala. 415, 1909 Ala. LEXIS 169

• Court: Supreme Court of Alabama
• Decided: May 24, 1909
• Status: Published

Opinion

SAYRE, J.

That part of count 5 material to bo here noted charged that the “defendant negligently failed to furnish plaintiff with a reasonably safe place to work.” The demurrer was that the count failed to allege or show how or wherein defendant negligently failed to furnish a safe place. This manner of averment, though little more than a mere conclusion, has often been held to satisfactorily meet the requirements of our system of pleading. — Ga. Pac. Ry. v. Davis, 92 Ala. 300, 9 South. 252, 25 Am. St. Rep. 47; Mary Lee Coal Co. v. Chambliss, 97 Ala. 171, 11 South. 897; Armstrong v. Street Ry., 123 Ala. 233, 26 South. 349; L. & N. R. R. v. Marbury, 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. Like considerations dispose of the single objection taken by the demurrer to count 4 of the complaint.

In three of the four counts upon which the case was tried plaintiff’s injury is attributed to the negligence of “to wit, one Foster, whose name is now otherwise unknown to plaintiff.” In the evidence there is repeated reference to Mr. Foster. It is insisted that the defendant was entitled to the general affirmative charge as to the three counts, for the reason that there ivas no proof as to the plaintiff’s knowledge in respect to Foster’s name “otherwise.” Conceding that the plaintiff failed to make out his case under the other one of the four counts, it is to be said in reference to the three containing this allegation that, whatever may be the meaning of the allegation, its presence in the complaint was not objected to. It had no essential relation io any matter which in point of law was needful to plaintiff’s claim or defendant’s defense. The failure to prove it as alleged will not be treated as either a material variance or a material failure of proof.

Affirmed.

Dowdell., C. J., and Anderson and McClellan, JJ., concur.