Birmingham Elec. Co. v. Bailey, 6 Div. 197.
| Citation | 15 So.2d 469,244 Ala. 671 |
| Decision Date | 28 October 1943 |
| Docket Number | 6 Div. 197. |
| Court | Supreme Court of Alabama |
| Parties | BIRMINGHAM ELECTRIC CO. v. BAILEY. |
Huey, Welch & Stone, of Bessemer, for the petition.
Ross, Ross & Ross, of Bessemer, opposed.
The several grounds on which the petition for certiorari are rested are well considered by the Court of Appeals. Birmingham Electric Co. v. Bailey, Ala.App., 15 So.2d 465.
The rules of good pleading in one or several counts of a complaint have been given in many decisions by this court. It is not necessary to repeat them here. Leach Harrison & Forwood v. Bush et al., 57 Ala. 145, 154; Birmingham Ry. L. & P. Co. v. Nicholas, 181 Ala. 491, 499, 61 So. 361; Peck v. Henderson, 218 Ala. 233, 234, 118 So. 262.
The amended count 2 is "grounded upon the alleged use of unnecessary force" in exercising the right of expulsion [Louisville & N.R. Co. v. Johnson, 92 Ala. 204, 9 So. 269, 25 Am.St.Rep. 35; Birmingham Electric Co. v. Maze, 231 Ala. 539, 166 So. 50], and has been considered by each of the Justices, and we concur with the Court of Appeals in the holding that the demurrer directed thereto was overruled without error.
There were conflicting tendencies in the evidence, as found by the Court of Appeals, and under the rule that obtains [McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135], the affirmative instruction, requested by the appellant-defendant, was properly refused.
The Court of Appeals well states the authorities and the evidence touching punitive damages claimed.
The conclusion announced is not contrary to the holding in Alabama Power Co. v. Dunlap, 240 Ala. 568, 572, 200 So. 617, where the facts are wholly different from those found by the Court of Appeals in this case.
The petition for certiorari is denied.
Writ denied.
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...the same should be refused. 18A Ala.Dig., Trial, k139(1); Birmingham Elec. Co. v. Bailey, 31 Ala.App. 275, 15 So.2d 465, cert. den. 244 Ala. 671, 15 So.2d 469. A cause should never be withdrawn from the jury unless it appears as a matter of law that a recovery cannot be had upon any view of......
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...v. O'Shields, 30 Ala.App. 254, 4 So.2d 202; Birmingham Electric Co. v. Bailey, 31 Ala.App. 275, 15 So.2d 465, certiorari denied 244 Ala. 671, 15 So.2d 469. It is contended further that defendant was due the general affirmative charge because even if the evidence is regarded as having a tend......