Henderson v. Tennessee Coal, Iron & R. Co.

• Decision Date: 17 December 1914
• Docket Number: 959
• Citation: 190 Ala. 126,67 So. 414
• Court: Alabama Supreme Court
• Parties: HENDERSON v. TENNESSEE COAL, IRON & R. Co.

67 So. 414

190 Ala. 126

HENDERSON v. TENNESSEE COAL, IRON & R. Co.

No. 959

Supreme Court of Alabama

December 17, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by Mutual Henderson, as administrator, against the Tennessee Coal, Iron & Railroad Company, for the death of her intestate, Nathaniel Henderson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

W.A Denson, of Birmingham, for appellant.

ANDERSON C.J.

It is not necessary upon the sufficiency of plea 9, as an answer to a complaint by a servant under the Employers' Liability Act, as count 3 of the complaint, the only one submitted to the jury, is not by a servant, but a licensee, and the plea places no duty upon the plaintiff to inform the defendant of the defect. Said plea, as an answer to count 3, was subject to ground 48 of plaintiff's demurrer and perhaps other grounds.

Plea 6 was bad and subject to the plaintiff's demurrer thereto. The averment that the failure of the plaintiff to examine the working place under the roof before commencing to work proximately caused his injury is but a conclusion of the pleader. The plea fails to aver that an examination of the roof would have disclosed the defect, as well as the danger of going to work at the place in question. Mascott Coal Co. v. Garrett, 156 Ala. 297, 47 So. 149; Southern Ry. Co. v. McGowan, 149 Ala. 452, 43 So. 378. This second alternative averment of plea 8 possesses the same vice as is dealt with in discussing plea 6.

The appellee has suggested the application of rule 45 (175 Ala. xxi, 61 South. ix) in avoidance of a reversal of this case upon the idea that, while the appeal is upon the record alone, there was no nonsuit; and it appears that the case was tried by a jury upon the merits; and, from aught that appears, the plaintiff may have failed to offer evidence in support of his count 3, or the defendant may not have offered any proof in support of the pleas in question. In other words, that the appellant has not shown probable injury resulting from the error in overruling his demurrer to the special pleas to count 3. It is no doubt true that rule 45, which is as follows:

"Hereafter no judgment will be reversed or set aside, nor new trial granted by this court or by any other court in this state, in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless, in the opinion of the court to which the appeal is taken, or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties"

--was intended to obviate previous rulings as to reversing cases upon the mere presumption of injury, whenever error was shown, and makes it incumbent upon an appellant to not only show error but also that he was probably injured thereby.

It is also true that in cases where the error complained of relates to pleading alone, and the appeal is only upon the record and there was no nonsuit, but a trial was had upon the facts and the merits, there should probably be a bill of exceptions showing that the errors...