Brenard Mfg. Co. v. Sullivan

RICE, J.

This is the third appeal in this c-ase. In all three trials the appellant, plaintiff in the court below, -was the loser. The facts may he ascertained from the reports of the two former decisions, the first by the Supreme Court ( 210 Ala. 200 , 97 So. 692 ), and the second by this court (ante, p. 44, 104 So. 887 ).

On this appeal but two questions are presented : (1) Did the trial court err in overruling plaintiff’s (appellant’s) demurrer to defendant’s plea 3? And (2) did the trial court err in refusing to give the general affirmative charge, which was duly requested, in favor of the plaintiff (appellant) ?

Answering the first question, we might observe that neither defendant’s plea 3, in this case, nor the demurrers thereto, appear to be different in any substantial particular in so far as the principles of law governing are concerned from defendant’s plea 5a, and the demurrers thereto, discussed by tbe Supreme Court on the first appeal of this case, and that upon the authority of that opinion (Brenard Mfg. Co. v. Sullivan, 210 Ala. 200 , 97 So. 692 ), we should hold, as' wre do hold, that there was no error in overruling plaintiff’s (appellant’s) demurrers to said plea 3.

With this plea in, a casual reading of the record discloses that there was sufficient evidence introduced to make the question as to whether or not it was proved one for the jury. Accordingly there was no error in refusing to give the general affirmative charge in favor of the plaintiff (appellant).

We find no error in the record, and the judgment is affirmed.

Affirmed.