Corona Coal Co. v. Huckelbey

PER CURIAM. The cause of action was tried upon count A only, the material averments of which appear in the statement of the case. This count seeks recovery against two defendant corporations under the Em *509 ployers’ Liability Act (Code 1907, § 3910), but reference throughout is made to the defendant in the singular. As framed, the count is entirely uncertain in whose service — which of these two defendants — the plaintiff was at the time of the injury, or which defendant was in fact operating the mine. [1] We are of the opinion this count must be held insufficient, and the demurrer taking the point should have been sustained. Cent. of Ga. R. R. Co. v. Carlock, 196 Ala. 659, 72 South. 261. [2] The insistence is further made that count A was amended before the cause was submitted to the jury by the action of the court m giving the affirmative charge at the request of the Birmingham Fuel & Iron Com- ■ pany, but it is not insisted that in fact there was any amendment of count A as a matter of pleading. We hardly see how this action of the court could cure the defects in this count, which names two defendants without designating which of the two operated the mine or employed the plaintiff, or whose agent was negligent. Appeal is made to rule 45 (175 Ala. xxi, 61 South, ix), and to some of our cases giving it application, but the court is of opinion the rule, under the circumstances here disclosed, cannot save the cause from reversal. The court is therefore of the opinion that the judgment should be reversed, and the cause remanded for another trial. Reversed and remanded. ANDERSON, O. J., and McCLELLAN, SAYRE, SOMERVILLE, THOMAS, and BROWN, JJ., concur. Footnotes [1] ©soFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes