Morrison v. Clark

BROWN, J. (1-3) While the demurrer interposed to the complaint was overruled, no assignment of error is predicated on this ruling; therefore, in testing the sufficiency of the complaint to sustain the judgment, it must be considered as if no demurrer had been interposed. In other words, if a substantial cause of action is stated, and the judgment is responsive to the complaint, the appellant cannot complain of defects that would subject the complaint to demurrer, and in construing the averments all doubt and intendment must be resolved in favor of, rather than against, the complaint.—American Bonding Co. of Baltimore v. New York & Mexican Whiting Co., 11 Ala. App. 578, 66 South. 847; Werten v. K. B. Koosa & Co., 169 Ala. 263, 58 South. 98; Walker v. Mobile, etc., Ins. Co., 31 Ala. 529. In determining whether the counts of the complaint state a substantial cause of action, all the averments of the count must be considered, and when thus considered, both counts of the complaint state a substantial cause of action and are sufficient to sustain the judgment of the court.—Barfield v. Evans, 187 Ala. 579, 65 South. 928; Barbour v. Shebor, 177 Ala. 304, 58 South. 276. (4) The insistence that the affirmative charge as to the whole case should have been given, because the evidence did not [326] justify the finding that Truman Morrison, who was operating the car, was the agent of the defendant, cannot be sustained, in the face of the statement in the bill of exceptions that the evidence tended to show that said Truman Morrison was the defendant’s agent to operate the car. (5) Neither can the assignment predicated on the refusal of a like charge as to the first count be sustained because of a variance between the averments and the proof, in the absence of a showing in the record that the variance was brought to the attention of the trial court by proper objection to the evidence.—Rule 34, Circuit Court Practice, 175 Ala. xxi; Woodward Iron Co. v. Steel, 192 Ala. 538, 68 South. 473. (6) The bill of exceptions recites: “Plaintiff’s testimony further tended to show that by proper care on the part of the driver of the automobile causing the injury the accident could have been avoided, and tended to show willful and wanton infliction of the injury complained of.” And when this statement is considered in connection with the further statement that the evidence also tended to show the person driving the car “was the agent of the defendant so to do,” the affirmative charge as to the second count, as well as the charge denying the plaintiff the right to recover punitive damages, was properly refused. (7) The bill of exceptions does not purport to set out all the evidence, but only the tendencies of the evidence. Therefore the assignment of error predicated on the refusal of a new trial cannot be sustained, and for like reasons the assignments of error predicated on the refusal of the several charges to appellant are not sustained.—Southern Ry. Co. v. Kendall, Infra, 69 South. 328; Sanders v. Steen, 128 Ala. 633, 29 South. 586; Clardy v. Walker, 132 Ala. 264, 31 South. 78; Southern Ry. Co. v. Herron, 12 Ala. App. 415, 68 South. 551; Alabama Terminal Co. v. Benns, 189 Ala. 590, 66 South. 589. Affirmed.