J. C. Carland & Co. v. Burke

GARDNER, J. This appeal is upon the record only; the motion to establish the bill of exceptions having been previously denied. (1) It is insisted by counsel for appellant that there was reversible error in overruling the demurrer to counts 3 and 4 of the complaint. There appears in the record what purports to be counts 3 and 4, although neither is signed by counsel nor marked filed. Waiving this deficiency for the purpose of this case, however, it is to be noted that the demurrer addressed thereto reads as follows: “To the third and fourth counts as amended on the 15th day of September, 1914.” The amendment to these counts does not appear in the record; the judgment entry showing merely a ruling on the demurrers as to counts 3 and 4. Presumption must therefore be indulged in favor of the ruling of the court below. (2) The record sets out a ruling of the court on the demurrer to the original counts, but-does not show such demurrer. It discloses demurrers, to the counts as amended on September 15, 1914; but such counts as amended do not appear in the record, nor does any ruling of the court on. any demurrer to the counts as amended so appear. In- this state of the case, therefore, re [438] versible error cannot be rested on this insistence. — L. & N. R. R. Co. v. Thomason, 171 Ala. 183, 55 South. 115; Prattville Cotton Mills v. McKinney, 178 Ala. 554, 59 South. 498; Parsons v. Age-Herald Co., 181 Ala. 439, 61 South. 345. It is next insisted that there was error in denying the petition for the removal of the cause. (3, 4) The record discloses a suit against the two defendants for a joint tort, and the petition, upon its face, discloses no grounds-for the removal of the cause under the statute provided therefor. It alleges, however, that the South & North Alabama Eailroad Company was jointly made a party defendant, for the purpose of preventing the removal of the cause. As said by this court in So. Ry. Co. v. Arnold, 162 Ala. 570, 50 South. 293, it is the general rule that fraud, when alleged, must be clearly and satisfactorily proven. The affidavit of counsel for appellee contains a full explanation of why the railroad company was made a party defendant, and insists, upon its entire good faith in so doing, which insistence was not met by counterproof. Verdict and judgment were rendered against both defendants. We are of the conclusion that the trial court was entirely justified in denying the petition. — So. Ry. Co. v. Arnold, supra; Ill. Cen. Ry. v. Robinson, 189 Ala. 523, 66 South. 519; Ala. So. Ry. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; K. C., etc., Ry. v. Herman, 187 U. S. 63, 23 Sup. Ct. 24, 47 L. Ed. 76; Hopkins Judic. Code, pp. 63-67. The case of Stix & Co. v. Keith, 90 Ala. 121, 7 South. 423, cited by counsel for appellant, discloses a petition in all respects sufficient, as justifying a removal of the cause to the federal court, but that case involved no question of fraud, as is the case here, and therefore does not militate against the conclusion here reached. (5) The complaint shows that the work being done on the right of way of defendant raliroad company was intrinsically dangerous. Special plea numbered 3 of said defendant does not take issue as to this feature, but merely sets up, in substance, that the work was being done for it by Carland, a contractor, who was prudent and skillful and obligated to perform the work in a workmanlike manner. The plea discloses that the work required the excavation made by the blasting alleged in the complaint. The work being intrinsically dangerous, this plea was insufficient under the following authorities: Mayor & Aldermen of Bir [439] mingham v. McCrary, 84 Ala. 469, 4 South. 630; Massey v. Oates, 143 Ala. 248, 39 South. 143; So. Ry. Co. v. Lewis, 165 Ala. 555, 51 South. 746, 138 Am. St. Rep. 77; Baker v. A. B. & A. Ry., 163 Ala. 101, 49 South. 751. We have here-treated the meritorious questions on this appeal, as presented by counsel for appellant in brief, and we find in the record no error calling for a reversal of the cause. The judgment of the court below will therefore be affirmed. Affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.