Opinion
6 Div. 71.
December 2, 1920. Rehearing Denied January 13, 1921.
Appeal from Circuit Court, Walker County; C. P. Almon, Judge.
A. F. Fite and John H. Bankhead, Jr., both of Jasper, for appellant.
Plea 4 was good, and not subject to the demurrer. 154 Ala. 616, 45 So. 646; 191 Ala. 628, 68 So. 136; 100 Ala. 377, 14 So. 105; 198 Ala. 590, 73 So. 933; 123 Ala. 46, 26 So. 512; 29 Cyc. 1523. The exception made the basis of the fourth assignment was good. 80 So. 882. Counsel discuss the demurrers to the counts of the complaint, but in view of the opinion it is not deemed necessary to here set them out. On application for rehearing, counsel insist that the record properly shows that the demurrers were refiled to the amended complaint and they cite 51 Ala. 74; 132 Ala. 258, 31 So. 81, 90 Am. St. Rep. 907; 120 Ala. 636, 24 So. 927; 76 Mich. 114, 42 N.W. 1119, 15 Am. St. Rep. 293; 2 Ind. 91, 52 Am. Dec. 494; 38 Ala. 248.
Leith, Gray, Powell, of Jasper, for appellee.
The court properly sustained demurrer to plea 4. 105 Ala. 170, 16 So. 576; 89 Ala. 521, 7 So. 666; 179 Ala. 126, 59 So. 619; 132 Ala. 507, 31 So. 618; 198 Ala. 658, 73 So. 956. Counsel discuss other assignments of error, but in view of the opinion it is not deemed necessary to here set them out.
The complaint as originally filed consisted of counts 1, 2, and 3, and was subsequently amended by adding counts 4 and 5. After the trial was entered upon the complaint was again amended by withdrawing counts, 1, 2, and 3, and the case was submitted to the jury on counts 4 and 5.
The paper incorporated in the record as a demurrer to the several counts of the complaint, immediately following the original complaint, is not addressed to the complaint as amended, and does not appear to have been filed to the original complaint or to the complaint as amended. The only ruling on demurrer to the complaint is shown in the minute entry as follows:
"Thereupon the defendant files demurrer to the complaint as amended. Said demurrer is considered by the court, it is the opinion of the court that the same is not well taken, and it is therefore the order and judgment of the court that the same be overruled."
The demurrer, if such there was, to the complaint as amended is not incorporated in the record, and, construing the minute entry in the light of the authorities, it fails to show a ruling of the court on the demurrers to the several counts of the complaint; therefore the assignments of error relating to the ruling of the court on demurrers to counts 4 and 5 of the complaint avail nothing. Berger v. Dempster, 85 So. 392; Ala. Chem. Co. v. Niles, 156 Ala. 298, 47 So. 239; Carland Co. v. Burks, 197 Ala. 435, 73 So. 10; Cent. of Ga. R. R. Co. v. Ashley, 159 Ala. 145, 48 So. 981; Cent. of Ga. R. R. Co. v. Hingson, 186 Ala, 40, 65 So. 45; Griel v. Lomax, 86 Ala. 132, 5 So. 325.
Neither the pleas nor demurrer to the pleas appear to have been indorsed "Filed" by the clerk, as required by the statute. Code 1907, §§ 5337, 5736. However, waiving this defect in the record, plea 4 does not in terms aver that it was the plaintiff's duty to look out for the wire, and it is deficient in omitting any averment of fact which imposed on the plaintiff such duty. B. R., L. P. Co. v. Gonzalez, 183 Ala. 278, 279, 61 So. 80, Ann. Cas. 1916A, 543.
The question made the basis of the fourth assignment of error, "Whose duty was it at that time to maintain these wires if you know? called for a mere conclusion of the witness, and the answer of the witness, "The Alabama Power Company, the owner of the plant," was purely a legal conclusion, and the objection to the question, as well as the motion to exclude the answer, should have been sustained. But, in view of the facts that it was shown without dispute that the wires were owned and being used by defendant in furnishing electricity to the city of Jasper, we hold that these rulings were without prejudice to the rights of the defendant.
Aside from the fact that the evidence offered on the trial made a jury case, the court and jury, with the consent of the parties, inspected the wires in question and the place of the accident, and witnesses were Interrogated at the place respecting the condition of the wires. The observations made by the court and jury were for all purposes matters of evidence that were not, and could not be, set out in the record. For these reasons we cannot say it was error to refuse the special charges (the affirmative charge and a like charge as to each count of the complaint) requested by the defendant.
The record being free from error, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.