Birmingham Electric Co. v. Bailey , 244 Ala. 671 ( 1943 )

The several grounds on which the petition for certiorari are rested are well considered by the Court of Appeals. Birmingham Electric Co. v. Bailey, Ala.App., 15 So. 2d 465.

The rules of good pleading in one or several counts of a complaint have been given in many decisions by this court. It is not necessary to repeat them here. Leach Harrison Forwood v. Bush et al., 57 Ala. 145, 154; Birmingham Ry. L. P. Co. v. Nicholas, 181 Ala. 491, 499, 61 So. 361; Peck v. Henderson,218 Ala. 233, 234, 118 So. 262.

The amended count 2 is "grounded upon the alleged use of unnecessary force" in exercising the right of expulsion [Louisville N. R. Co. v. Johnson, 92 Ala. 204, 9 So. 269, 25 Am. St. Rep. 35; Birmingham Electric Co. v. Maze, 231 Ala. 539,166 So. 50], and has been considered by each of the Justices, and we concur with the Court of Appeals in the holding that the demurrer directed thereto was overruled without error.

There were conflicting tendencies in the evidence, as found by the Court of Appeals, and under the rule that obtains [McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135], the affirmative instruction, requested by the appellant-defendant, was properly refused.

The Court of Appeals well states the authorities and the evidence touching punitive damages claimed.

The conclusion announced is not contrary to the holding in Alabama Power Co. v. Dunlap, 240 Ala. 568, 572, 200 So. 617, where the facts are wholly different from those found by the Court of Appeals in this case.

The petition for certiorari is denied.

Writ denied.

GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.