Tabb v. Zieman

• Decision Date: 15 April 1924
• Docket Number: 1 Div. 544.
• Citation: 20 Ala.App. 10,100 So. 562
• Parties: TABB v. Zieman
• Court: Alabama Court of Appeals

100 So. 562

20 Ala.App. 10

TABB v. Zieman

1 Div. 544.

Court of Appeals of Alabama

April 15, 1924

Rehearing Denied May 13, 1924.

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action for damages by Nelson Tabb against L. A. Zieman, doing business as L. A. Zieman & Co. Following the action of the court in sustaining demurrer to the complaint plaintiff takes a nonsuit and appeals. Reversed and rendered.

Alex T. Howard, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

SAMFORD, J.

The amended complaint is in four counts, to all of which the trial court sustained demurrers. Thereupon, plaintiff took a nonsuit on account of the adverse ruling of the court and here assigns as error the rulings of the court on the demurrers. As we view it, it will not be necessary to consider any but the rulings of the court on demurrer to the fourth count.

This count was held to be good in A. G. S. R. R. Co. v. Vail, 142 Ala. 134, 38 So. 124, 110 Am. St. Rep. 23, and the opinion in the Vail Case was amply supported by the opinions in Ga. Pac. Ry. v. Davis, 92 Ala. 300, 9 So. 252, 25 Am. St. Rep. 47; S. & N. R. R. Co., v. Thompson, 62 Ala. 494; Laughran v. Brewer, 113 Ala. 509, 21 So. 415. The allegation in the complaint that, "by reason of said failure the same fell upon plaintiff's hand," etc., can only mean that the injury was proximately caused by the negligence theretofore alleged. The complaint alleged that the defendant negligently failed to provide a sufficient number of men to handle said pitman. This, with the preceding allegation of the plaintiff's duty to his employer and a description of the pitman, was a sufficient allegation of negligence, which may be alleged in general terms. Assumption of risks and contributory negligence cannot be raised by demurrer, but must be specially pleaded. Bromley v. Birmingham Min. Ry. Co., 95 Ala. 403, 11 So. 341; First Nat. Bank v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39.

The court erred in its rulings on demurrer as to the fourth count, and for this error the judgment is reversed and the cause is reinstated on the docket.

Reversed and rendered.