Messer v. Southern Airways Sales Co.

PER CURIAM. The court, sitting in general conference, is of opinion that count one, in not averring that seasonable tender was made to the defendant for the services demanded of the defendant at said airport, was subject to the nineteenth ground of demurrer. The majority of the court, consisting of THOMAS, BROWN, FOSTER, LIVINGSTON, and STAKELY, JJ., are of opinion that the grounds of demurrer taking the point that the facts averred in count two do not support the conclusion of willful or wanton injuries, were well taken. Lehigh Portland Cement Company v. Sharit, 234 Ala. 40, 173 So. 386. On this point GARDNER, C. J., and SIMPSON, J., dissent. The majority, consisting of GARDNER, C. J., THOMAS, FOSTER, LIVINGSTON, STAKELY, and SIMPSON, JJ., hold that counts six, seven and eight are good, as against the demurrer, and the court erred in sustaining the same. Reversed and remanded. GARDNER, C. J., and THOMAS, FOSTER, LIVINGSTON, STAKELY and SIMPSON, JJ., concur in the reversal.