Corona Coal Co. v. Huckelbey

• Decision Date: 30 June 1920
• Docket Number: 6 Div. 27
• Citation: 204 Ala. 508,86 So. 25
• Parties: CORONA COAL CO. v. HUCKELBEY.
• Court: Alabama Supreme Court

86 So. 25

204 Ala. 508

CORONA COAL CO. v. HUCKELBEY.

6 Div. 27

Supreme Court of Alabama

June 30, 1920

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

Action by Jeff Huckelbey against the Corona Coal Company and another, for damages for personal injury. From judgment for plaintiff, the named defendant appeals. Reversed and remanded.

Gardner J., dissenting.

A.F Fite, of Jasper, for appellant.

Lacy Lacy & Shepherd, of Jasper, for appellee.

PER CURIAM.

The cause of action was tried upon count A only, the material averments of which appear in the statement of the case. This count seeks recovery against two defendant corporations under the Employers' Liability Act (Code 1907, § 3910), but reference throughout is made to the defendant in the singular. As framed, the count is entirely uncertain in whose service--which of these two defendants--the plaintiff was at the time of the injury, or which defendant was in fact operating the mine.

We are of the opinion this count must be held insufficient, and the demurrer taking the point should have been sustained. Cent. of Ga. R.R. Co. v. Carlock, 196 Ala. 659, 72 So. 261.

The insistence is further made that count A was amended before the cause was submitted to the jury by the action of the court in giving the affirmative charge at the request of the Birmingham Fuel & Iron Company, but it is not insisted that in fact there was any amendment of count A as a matter of pleading. We hardly see how this action of the court could cure the defects in this count, which names two defendants without designating which of the two operated the mine or employed the plaintiff, or whose agent was negligent.

Appeal is made to rule 45 (175 Ala. xxi, 61 South. ix), and to some of our cases giving it application, but the court is of opinion the rule, under the circumstances here disclosed, cannot save the cause from reversal. The court is therefore of the opinion that the judgment should be reversed, and the cause remanded for another trial.

Reversed and remanded.

ANDERSON, C.J., and McCLELLAN, SAYRE, SOMERVILLE, THOMAS, and BROWN, JJ., concur.

GARDNER J. (dissenting).

It is to be noted that the count upon which the cause was tried sought recovery against two named defendants, and used the expression, "the plaintiff claims of the defendants," the latter word being in the plural as noted. Subsequent reference, however, is had to the defendants in the singular, as defendant, and for this reason counsel insist that the complaint failed to show which defendant was operating the mine, or by which defendant the plaintiff was employed, and, further, that the complaint fails to state a cause of action. In 18 Corpus Juris, 460, is found the following, under the headnote "defendant":

"The word may be used as a collective noun and will include all parties defendant."

The case of West Chicago Ry. Co. v. Horne, 197 Ill. 250 64 N.E. 331, is among those cited in the note, and the one here more nearly in point, though the verdict and judgment were...