Black v. Sloss-Sheffield Steel & Iron Co.

The suit was for personal injury resulting in the death of plaintiff's intestate. The case was tried in the court below upon its merits. The learned trial judge gave the affirmative charge in writing at defendant's request. The appeal was on the record alone. There was no nonsuit; no bill of exceptions showing what evidence was introduced at the trial. Counts 1 and 2, under the common law, were to the effect that the roof or material composing the roof of the mine was so defective that the "proper propping thereof would not prevent its falling, and, as a proximate consequence thereof, the roof fell on plaintiff's intestate, inflicting upon him injuries from which he died." Count 3 averred, among other things: That intestate's death "was proximately caused by the wantonness of defendant's servant or agent, while acting within the line and scope of his duty under his employment, and that said wantonness consisted in this, that the servant or agent of the defendant intrusted by it, under his said employment with the duty of providing a place for intestate to work, wantonly placed him to work where the roof of the mine over him was of such unsubstantial and rotten material that it would not be prevented from falling by properly propping the same, all of which said servant or agent of the defendant well knew, and knew that to put intestate to work in said place would likely or probably result in his death or serious bodily harm to him." Count 4 was framed under the "Defect" subdivision of the Employers' Liability Act. Code, § 3910, subd. 1. Appellant's counsel observed of the pleading and questions presented by the appeal: "There are four counts in the complaint. The second went out on demurrer, about which no complaint is made. Demurrers were sustained to all pleas to the third. This leaves for consideration the action of the court in overruling demurrers to pleas to the complaint consisting of the first and fourth counts, and overruling demurrers assailing pleas as answers to the fourth count. These pleas are numbers 2, 3, 11, 12, and 13." It has been held that where the court has erred in its rulings on pleadings and there was no nonsuit, but the trial was had on the merits, "and the instructions given and refused were set up as a part of the record proper," and these indicated that the rulings were prejudicial, the judgment will be reversed, notwithstanding there was no bill of exceptions. Henderson v. T. C. I. R. R. Co., 190 Ala. 126, 67 So. 414; Pratt v. B. R. L. P. Co., 191 Ala. 638, 68 So. 151; Lloyd v. Cent. of Ga. Ry. Co., 77 So. 237;1 Beiser v. W. O. W., 74 So. 235, 237;2 W. O. W. v. Ward, 78 So. 824;3 Walker, Stipp Johnson v. Fletcher (App.) 77 So. 56;4 Mitchell v. State,14 Ala. App. 104, 71 So. 982; Wilson v. Owens H. M. Co.,14 Ala. App. 467, 70 So. 956. In the instant case, no nonsuit having been taken because of adverse rulings on the pleadings, and having proceeded to trial on the merits, the general affirmative *Page 507 charge, given for defendant on its written request, being the only charge requested and given, was, for aught that the record discloses, given because of the failure of evidence to support the complaint. The same presumption would be indulged as to no evidence being offered in support of any of defendant's pleas, and no prejudicial error as to any ruling on demurrer to pleas. Harrell v. Hooks (App.) 80 So. 145. The judgment of the circuit court is affirmed. Affirmed. ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and GARDNER, JJ., concur. 1 200 Ala. 694. 2 199 Ala. 41. 3 201 Ala. 446. 4 16 Ala. App. 218.