Kennedy v. Lyric Theatre Co.

• Decision Date: 28 January 1925
• Docket Number: 6 Div. 238
• Citation: 104 So. 274,213 Ala. 153
• Parties: KENNEDY v. LYRIC THEATRE CO.
• Court: Alabama Supreme Court

104 So. 274

213 Ala. 153

KENNEDY v. LYRIC THEATRE CO.

6 Div. 238

Supreme Court of Alabama

January 28, 1925

Rehearing Denied May 14, 1925

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by Emma Frances Kennedy against the Lyric Theatre Company. From a judgment of nonsuit, plaintiff appeals. Appeal dismissed.

Gardner Sayre, and Bouldin, JJ., dissenting.

Burgin Copeland & King, and Edgar Allen, all of Birmingham, for appellant.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellee.

MILLER J.

This is a damage suit for personal injuries by Emma Frances Kennedy against the Lyric Treatre Company, a corporation. The complaint as originally filed contained three counts numbered 1, 2, and 3. It was amended by plaintiff by adding counts 4, 5, 6, 7, 8, and 9, and by adding counts lettered A, B, C, D, and E. The plaintiff by leave of the court then amended counts numbered 1, 2, 4, and 5. The defendant demurred to each count in the complaint as originally filed, and to each count of the complaint as amended. The court overruled demurrers to counts numbered 1, 2, 4, and 5, as amended, and sustained demurrers to counts numbered 3, 6, 7, 8, 9, and lettered counts A, B, C, D, and E.

The plaintiff asked the court for a nonsuit with bill of exceptions, because it sustained demurrers to counts 3, 6, 7, 8, 9, A, B, C, D, and E; the court granted the nonsuit as requested by plaintiff, allowed her the privilege of filing bill of exceptions, dismissed the cause, and taxed her with the court cost, and ordered defendant to go hence. The plaintiff prosecutes this appeal from that judgment.

It is insisted by appellee that this court has no authority to review these rulings of the trial court on the pleadings adverse to the appellant on this judgment voluntarily taken by nonsuit by appellant, because the record fails to affirmatively show that a non-suit became necessary on account of these adverse rulings of the court, and no appeal lies from such nonsuit so taken by plaintiff.

That part of the statute applicable reads as follows:

"If from any ruling *** of the court on the trial of the cause upon the pleadings *** it may become necessary for the plaintiff to suffer a nonsuit, the *** ruling may be reserved for the decision of the appellate court by bill of exceptions or by appeal on the record as in other cases."

The record shows the court overruled demurrers to counts 1, 2, 4, and 5, as last amended, and held them good, and sustained demurrers to counts 3, 7, 8, 9, A, B, C, D, and E; and "plaintiff now takes a nonsuit with a bill of exceptions on account of the adverse rulings of the court." There is no bill of exceptions.

Can this court review these rulings of the court adverse to plaintiff on some of the counts in the complaint? The record shows no necessity for the nonsuit on account of these adverse rulings of the court, because the court held four counts of the complaint sufficient, and there is nothing showing plaintiff could not present her cause of action to the jury under either of them. She had four good counts under the rulings of the court when she voluntarily requested and took the nonsuit. She did not amend her complaint by striking out the four good counts after the adverse rulings of the court, clearly indicating thereby that she could not prove them, that they did not fully represent her cause of action, but the counts stricken by demurrer did, and thus brought her under the rule declared in Epperson v. First National Bank, 209 Ala. 12, 95 So. 343. This court in Engle v. Patterson, 167 Ala. 120, 52 So. 397, wrote:

"In the absence of a statutory provision authorizing it, a writ of error or appeal would not lie from a voluntary nonsuit or a nonsuit taken by the plaintiff in consequence of adverse rulings of the court."

See, also, Rogers v. Jones, 51 Ala. 354; Cain v. Byrd, 1 Stew. 189; Tate v. McCrary, 21 Ala. 499. We have quoted the applicable part of our statute to the facts in this case hereinbefore in this opinion.

In construing this statute (section 3017, Code 1907) this court in Ex parte Martin, 180 Ala. 620, 61 So. 905, wrote:

"In support of this contention it is urged that section 3017 of the Code does not apply, for the reason that it was not made to appear that 'it became necessary for plaintiff to suffer a nonsuit.' It is very true that, in order to revise rulings of courts after voluntary nonsuit, this much must be made to appear by the record proper, or by the bill of exceptions, because it is upon this condition only that the statute authorizes the review on appeal. It does not follow, however, that this must be made to appear in the exact language of the statute, or of any of the decisions construing it. The record is sufficient to authorize the revision if it is made reasonably certain thereby that the nonsuit was rendered necessary in consequence of the adverse ruling. *** The action was on a bond, and the trial court sustained a demurrer thereto which went to the whole right of action, not to the mere form, so all that was left for the plaintiff to do was to take the nonsuit or suffer judgment. It chose the former, and, we think, correctly."

The foregoing was approved, and quoted in part, by this court in Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11.

In Bush v. Russell, 180 Ala. 590, 61 So. 373, the defendant filed several special pleas and general issue to the complaint. Demurrers of plaintiff were overruled by the court to each and all of the special pleas. The plaintiff took a nonsuit, because of the adverse rulings of the court on the special pleas. This court held the record showed a necessity for it, and reviewed these rulings, because the plaintiff by taking the nonsuit clearly made it known that it could probably prove its complaint as against the general issue interposed to it, but could not meet and avoid the defenses to the complaint interposed by the special pleas. These rulings necessitated the nonsuit by plaintiff, and the record shows it.

The record in this case does not disclose that it became reasonably certain by the court sustaining demurrers to some counts in this complaint, that a nonsuit was rendered necessary when it appears from the record the court overruled demurrers to and held four counts of the complaint sufficient. The demurrers were not sustained to the complaint, the whole right of action, but they were sustained to only 10 of the 14 counts of the complaint. Four counts of the complaint held good by the trial court, were in the complaint when the nonsuit was taken by the plaintiff. There is nothing in the record to show her cause of action, if any, could not be presented under either of these counts.

We think it is a sound practical rule, deducible from our decisions, and in harmony with the purpose of the...