Opinion
7 Div. 189.
June 2, 1921.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Percy, Benners Burr and J. R. Forman, all of Birmingham, for appellant.
The defendant was entitled to the affirmative charge as to count 3. 203 Ala. 461, 83 So. 323; 198 Ala. 469, 73 So. 648; 194 Ala. 278, 69 So. 952; 171 Ala. 251, 55 So. 170. Counsel discuss the question of damages, but, in view of the opinion, it is not deemed necessary to here set them out.
Frank S. Andress, of Birmingham, for appellee.
No brief reached the Reporter.
This case was submitted to the jury under issues consequent upon the averments of count 3 alone. The judgment below is reversed upon the authority of Ala. Fuel Iron Co. v. J. A. Vaughan, 205 Ala. 589, 88 So. 857.
It may be remarked that count 3 was defective in the particular that it failed to aver a duty on defendant to which the generally alleged negligence of the defendant was referable. T. C. I. Co. v. Smith, 171 Ala. 251, 55 So. 170. There is no intimation, even, in the count that these parties were related riparian proprietors, out of which relation there arose certain rights, duties, and responsibilities.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C J., and SOMERVILLE and THOMAS, JJ., concur.