Moody v. Tennessee Coal, Iron R. Co.

96 So. 427, 209 Ala. 479, 1923 Ala. LEXIS 484

• Court: Supreme Court of Alabama
• Decided: February 1, 1923
• Docket: 6 Div. 600.
• Status: Published

Opinions

PER CURIAM.

Appellant’s intestate, proceeding under the third subdivision of the Employer’s Liability Act (Code 1907, § 3910), sued to recover damages for personal injuries suffered by him and alleged (count 2) to have been caused by the negligence of one Dermott in ordering plaintiff to “break a hot runner.” Plaintiff having died, the action was revived in the name of appellant as administratrix. Defendant’s plea 3 undertook to state a defense in that plaintiff’s intestate had assumed the risk of the injuries suffered. Plaintiff demurred, and her demurrer was overruled. This ruling is assigned for error. Plaintiff replied generally and by two special replications. Defendant’s demurrer was sustained. These rulings are also assigned and argued. The cause being tried before a jury, the court gave the general affirmative charge for the defendant.

Conceding for the argument that the rulings on the pleadings were of doubtful propriety, the court will not bring them into judgment for the reason that, for aught appearing, the general charge may have been properly given on some ground wholly unaffected by the pleadings in question, as, for example, the plaintiff may have wholly failed to prove the case alleged in the complaint. Amended circuit court rule 32 covers the case. 175 Ala. xxi. A bill of exceptions should have been reserved.

Plaintiff, appellant, has filed a motion to establish a hill of exceptions, but offers no evidence in support thereof. For this reason the court cannot consult the so-called bill, though it is referred to in the brief as establishing injury 'in the rulings on the pleadings.

Affirmed.

ANDERSON, C. J., and SAYRE; GARDNER, and MILLER, JJ., concur.