Roach v. Wright
| Decision Date | 04 November 1915 |
| Docket Number | 6 Div. 8 |
| Parties | ROACH v. WRIGHT. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.
Action by A.J. Wright against J.R. Roach and another who was stricken from the case. Judgment for plaintiff, and defendant Roach appeals. (Transferred from the Court of Appeals under Acts 1911, § 6, p. 449.) Affirmed.
McNeil & Monroe, of Fayette, for appellant.
Beasley & Wright, of Fayette, for appellee.
The first assignment of error is:
"The court erred in overruling the defendant's demurrers to each count of the complaint."
This assignment is too general to require a separate review of the demurrers to each count of the complaint unless each of said counts are bad. Jordan v. Rice, 165 Ala. 650, 51 So 517. It is sufficient to say that count 1 was not subject to any of the grounds of demurrer, and the sufficiency of same is supported by the case, cited by counsel for appellant. Birmingham R., L. & P. Co. v. Ely, 183 Ala. 382, 62 So. 816. It is true the opinion in said case condemns count 1 there considered, but it must be noted that the opinion was not concurred in by the court, as a majority held that said count was sufficient.
The defendant's refused charges 2, 3, 4, and 5 requested an affirmative finding for the defendant separately as to the counts therein mentioned, and were in bad form. Western Steel Co. v. Cunningham, 158 Ala. 369, 48 So. 109; Ala. Iron Co. v. Smith, 155 Ala. 287, 46 So. 475.
Charge 7, refused the defendant, was abstract. The undisputed evidence showed that the mule was frightened by the approach of the automobile.
Charge E, requested by the defendant, was foreign to any issue in the case, as there was no claim for punitive damages. Charges should be based upon issues made by the pleading, and should not inject new ones into the case. In the case of Bowles v. Lowery, 5 Ala.App. 555, 59 So. 696, this court held that there was error in giving charge D, at the request of the plaintiff, as it authorized a recovery for punitive damages which was not covered by the complaint. In other words, the charge injected a foreign issue into the case just as charge E does in the present case. The case of Barbour v. Shebor, 177 Ala. 304, 58 So. 276, has no bearing upon the defendant's refused charge E. Moreover we think that this is among the few cases in which we can safely say that the verdict of the jury...
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