Alabama Power Co. v. Fergusen

• Decision Date: 02 December 1920
• Docket Number: 6 Div. 71
• Citation: 87 So. 796,205 Ala. 204
• Parties: ALABAMA POWER CO. v. FERGUSEN.
• Court: Alabama Supreme Court

87 So. 796

205 Ala. 204

ALABAMA POWER CO. v. FERGUSEN.

6 Div. 71

Supreme Court of Alabama

December 2, 1920

Rehearing Denied Jan. 13, 1921

Appeal from Circuit Court, Walker County; C.P. Almon, Judge.

Action by Frank Fergusen against the Alabama Power Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

A.F Fite and John H. Bankhead, Jr., both of Jasper, for appellant.

Leith Gray, & Powell, of Jasper, for appellee.

BROWN J.

The complaint as originally filed consisted of counts 1, 2, and 3, and was subsequently amended by adding counts 4 and 5. After the trial was entered upon the complaint was again amended by withdrawing counts, 1, 2, and 3, and the case was submitted to the jury on counts 4 and 5.

The paper incorporated in the record as a demurrer to the several counts of the complaint, immediately following the original complaint, is not addressed to the complaint as amended, and does not appear to have been filed to the original complaint or to the complaint as amended. The only ruling on demurrer to the complaint is shown in the minute entry as follows:

"Thereupon the defendant files demurrer to the complaint as amended. Said demurrer is considered by the court, it is the opinion of the court that the same is not well taken, and it is therefore the order and judgment of the court that the same be overruled."

The demurrer, if such there was, to the complaint as amended is not incorporated in the record, and, construing the minute entry in the light of the authorities, it fails to show a ruling of the court on the demurrers to the several counts of the complaint; therefore the assignments of error relating to the ruling of the court on demurrers to counts 4 and 5 of the complaint avail nothing. Berger v. Dempster, 85 So 392; Ala. Chem. Co. v. Niles, 156 Ala. 298, 47 So. 239; Carland & Co. v. Burks, 197 Ala. 435, 73 So. 10; Cent. of Ga. R.R. Co. v. Ashley, 159 Ala. 145, 48 So. 981; Cent. of Ga. R.R. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. Lomax, 86 Ala. 132, 5 So. 325.

Neither the pleas nor demurrer to the pleas appear to have been indorsed "Filed" by the clerk, as required by the statute. Code 1907, §§ 5337, 5736. However, waiving this defect in the record, plea 4 does not in terms aver that it was the plaintiff's duty to look out for the wire, and it is deficient in omitting any averment of fact which imposed on the plaintiff such duty. B.R., L. & P. Co. v. Gonzalez, 183 Ala. 278, 279, 61 So. 80, Ann.Cas.1916A, 543.

The question made the basis of the fourth assignment of error "Whose duty was it at that time to maintain these...