Opinion
6 Div. 106.
June 20, 1957.
Appeal from the Circuit Court, Jefferson County, Thomas E. Huey, Jr., J.
Jos. S. Lord, III, and Richter, Lord Farage, Philadelphia, Pa., and G. Ernest Jones, Jr., and Jones Jones, Birmingham, for appellant.
Peyton D. Bibb, and Graham, Bibb, Wingo Foster, Birmingham, for appellee.
This is the second appeal in this cause. On the first trial in circuit court, judgment was entered in favor of plaintiff Stinson. On appeal, this court decided that the defendant, Atlantic Coast Line Railroad Company, was entitled to the affirmative charge, and the judgment was reversed and the cause remanded. Atlantic Coast Line Railroad Co. v. Stinson, 264 Ala. 522, 88 So.2d 189. Under these circumstances, there being no final judgment, it was impossible to apply to the Supreme Court of the United States for a review of the decision of this court.
When the cause again came on for trial, the parties, by stipulation, submitted the cause to the jury on the identical pleadings, testimony, evidence and rulings of the court as on the original trial. The trial court properly gave the requested written affirmative charge for the defendant and plaintiff effected this appeal.
This court continues to hold that the affirmative charge was properly given, and that the judgment of the circuit court should be affirmed. For the sake of brevity, and to avoid the setting out of the original opinion verbatim, we hereby adopt the opinion in Atlantic Coast Line Railroad Co. v. Stinson, 264 Ala. 522, 88 So.2d 189, as our opinion in the instant case.
We feel that we should correct the concurrences in our original opinion as listed in the printed reports. Upon original deliverance, Chief Justice Livingston, Justices Lawson and Merrill concurred in the opinion by Mr. Justice Stakely, as reported. On application for rehearing, Chief Justice Livingston was of the opinion that the application for rehearing ought to be granted. That necessitated the consideration of the opinion by the entire court. At that consultation, all the justices concurred except Chief Justice Livingston who dissented. The original record shows a notation of such dissent. This explanation is included only for the sake of accuracy.
The appellee in the instant cause has filed a motion to dismiss the appeal. We have carefully considered the grounds listed in the motion and those argued in brief, and we are of the opinion that in this particular case, they are not sufficient to warrant the dismissal of the appeal. Motion overruled.
Affirmed.
All the Justices concur, except LIVINGSTON, C. J., who dissents.