Horan v. Gray & Dudley Hdw. Co.

DOWDELL, J. The first and fourth counts of the complaint, to which demurrers were sustained, Avere each defective and subject to the demurrer. In neither of said counts is it alleged that any duty existed on the part of the master to warn the servant of the danger from which the injury resulted, nor is any state of facts averred from which such duty would arise. For aught that appears from the averments of these two counts, the servant himself kneAV of the existence of the danger, and. according to the familiar rule of construing the pleading more strongly against the pleader, it Avill he presumed, on demurrer raising the question, from a failure to aver [164] want' of knowledge, that such knowledge existed. If the plaintiff had knowledge of the danger, or by the exercise of ordinary care could have known of it, then the defendant was under no legal duty to warn him. The demurrer sufficiently raised the question, and the ruling of the court thereon was free from error. The judgment entry recites that demurrers to pleas 7 and 8 were overruled, but the demurrers to these pleas are nowhere set out in the record. We cannot tell what the demurrers were, and for aught we know they were general, and for this reason were overruled. In this state of the record, the action of the court on the demur rers cannot be reviewed on appeal. This has been repeatedly held by this court. Where there are several pleas upon which issue is joined, the establishment of any one of them entitles the defendant to a verdict, as much so as the proving of all of them. The seventh plea of the defendant in the case before us, upon which issue was joined, was proven without conflict in the evidence. This authorized the giving of the general affirmative charge, as requested in writing by the defendant. ' Under this state of the case, whether error was committed or not in the ruling of the court on the demurrer to the fourth plea is of no consequence, since, if error was committed, it was error without injury. It is unnecessary to consider other questions discussed by counsel, as what Ave have ruled is conclusive of the case. The judgment is affirmed. Affirmed. Simpson, Denson, and Mayfield, JJ., concur.