Volume 182 — Alabama Reports

Heard before Hon. H. B. Foster. Pliaris Ward, alias, etc., was convicted of murder and he- appeals. Counsel discuss errors relative to the rejection of evidence, and insist that there was material error therein, but they cite no authority in support of their contention.

Heard before Hon. Lum Duke. Hill Cranberry was convicted of murder in tbe first degree, and be appeals.

Heard before Hon. Thomas W. Coléman, Jr. William Kennedy was convicted of murder in the first degree, and he appeals. Shelton Kennedy and his son Sarge were killed in the same affray, and defendant was jointly indicted with John Pearce and others for the murder of Shelton Kennedy, who was the defendant’s son.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Will Campbell was convicted of murder in tbe first degree, and he appeals. Tbe facts relative to tbe motion and evidence sufficiently appear in tbe opinion.

Original petition in the Supreme Court. Petition by Savannah Williams for certiorari or other remedial writ to the Court of Appeals to review the judgment of that court dismissing the appeal, in the case of Savannah Williams v. State. The appellate court erred in its judgment dismissing petitioner’s appeal. Secs. 6255, Code 1907. — Ex parte Knight, 61 Ala. 483; Ex parte Cameron, 81 Ala. 87.

Heard before Hon. Jambs A. Bilbko. Mark Smith was convicted of murder, and appeals. The facts sufficiently appear from the opinion.

Heard before Hon. A. H. Alston. Henry Meadows was convicted of murder in the first degree and he appeals. The action of the court in sending the jury back to their room with the reprimand given was in effect, to coerce a verdict. — DeJarnette v. Cox, 128 Ala. 518; Phoenix I. Co. v. Moog, 81 Ala. 3-13; Green v. Telfair, 11 How. Pr. 260. The judgment and sentence is insufficient. — Gray v. Stale, 55 Ala. 88; Wright v. State, 103 Ala. 96; Freeman on Judgments, sec. 16.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Bud McClain ivas convicted of murder and be appeals. Held: but without conclusion as to the authorship of the crime. The discussion of the crime was constant and general throughout both counties both among the people and in the newspapers.

Heard before Hon. James H. Ballentine. Action by J. W. B. Hawkins against Damson & Abraham on account and for conversion. From a judgment for defendants, plaintiff appealed to the Court of Appeals, whence the case was transferred, to the Supreme Court under Acts 1911, p. 449, § 6. The plaintiff claims a lien by way of an assignment of an account for advances made by Stephens to Lee.

Birmingham City Court. Heard before Hon. H. A. Sharpe. Assumpsit by Albert Williams against W. C. Shackelford. Judgment for plaintiff and defendant appeals. A partnership cannot exist between partners unless such is their intention. — Gulf G. S. Go. v. Boyles, 129 Ala. 196. Hence, the court could not find that the evidence establishes a partnership inter se as between Treat and Shackelford.

Heard before Hon. W. W. Haralson. Action by Ella Scott and others against J. A. Snead, in assumpsit and trover. Judgment for plaintiffs, and defendant appeals. A. A. Scott died in June, 1909, leaving a .widow and six minor children of a former wife. Among other things he left a homestead, a gray mule, and growing-crops of corn and cotton, both homestead and personalty being less than the exemptions allowed by law to the widow and minor children.

Heard before Hon. C. C. Nesmith. Action by Savannah Shields as the beneficiary named in an accident insurance policy against the Pacific Mutual Life Insurance Company. Judgment for plaintiff and defendant appeals. The count was subject to the demurrers assigned. — 89 Cal. 170; 53 N. E. 1035. The court erred in sustaining demurrers to the pleas. — 10 South. 530; 6 South. 143; 75 Wis. 116; 144 Mass. 572.

Heard before Hon. C. P. Almon. Assumpsit by Sam M. Bush against the Alabama Western Railroad Company. From a judgment for plaintiff, defendant appeals. The action was on the common counts for work and labor done by plaintiff for defendant in the years 1906-07 at its request.

Heard, before Hon. J. C. B. Gwin. Action by A. H. Laird against the Security Insurance Company, on a fire insurance policy. Judgment for plaintiff and defendant appeals. The court should have sustained defendant’s demurrer to plaintiff’s replication setting up the retention of the premium with notice of the mortgage prior to the loss by fire. — Ala. S. M. A. Go. v. Long, 123 Ala. 667; Traders I. Go. v. Letcher, 143 Ala. 400; Gassimus v. S. U. & N. I. Go., 135 Ala. 256.

Circuit Court. Heard before Hon. A. E. Gamble. Action by Francis J. Dean on a life insurance policy against the Meridian Life Insurance Company. Judgment for plaintiff and defendant appeals. The court erred in sustaining plaintiff’s demurrers to pleas 1, 3, 4, 5, 6 and 7, each of which set up the illegality of the policy as being opposed to the statute prohibiting rebating or discrimination.- — 20 Ene.

Heard before Hon. C. C. Nesmith. Action by the Kansas City, Memphis & Birmingham Railroad Company against James P. Stiles to recover franchise tax. From a judgment for defendant, plaintiff appeals.

Heard before Hon. Samuel B. Browne. Assumpsit by tbe Soule Steam Feed Works against tbe Yinegar Bend Lumber Company. Judgment for plaintiff, and defendant appeals. Tbe character and nature of tbe contract, together with tbe facts, sufficiently appear in tbe opinion of tbe court.

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saeeold Berney.</p> <p>Assumpsit by Nicoles & Leeper against O. W. Elliott. Judgment for plaintiff and defendant appeals.</p> <p>The second count is fatally defective, and the court erred in overruling demurrers thereto. — Elmore-Quillan & Co. v. Parrish Bros., 170 Ala. 499; 9 Cyc. 711-713. This is also true as to the first count.</p> <p>The count contains every material allegation which would be a condition precedent to a recovery on the contract. — Sec. 5321, Code 1907; Bell v. Comegys, Minor 201; Mullins v. Cabaniss, Minor 21; Clark v. Goddard, 39 Ala; 164; Castle Mills v. Strata Bros., 51 South. 972. The demurrers were too general. — Cook v. Borne B. Co., 12 South, 918. For the same reason and on the same authorities, the court did not err as to count 1.</p>

'Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by Allie E. Dickson against W. T. MeGowin for breach of contract. Judgment by default, and defendant appeals.

Heard before Hon. C. B. Smith. Action by Fred J. Bender against George W. Barton, Jr., for breach of contract in the sale of land. Judgment for defendant and plaintiff appeals. The court erred in sustaining demurrers to counts 1, 2, B, and C, of the complaint.- — Secs. 3-168-9, Code 1907, and authorities there cited. The description was not so uncertain that it could not be rendered certain by evidence aliunde.— Homan v. Stewart, 103 Ala. 611.

Heard before Hon. L. D. Gardner. Bill by W. L. Jones, and another, against H. A. Knowles and another, to restrain' them from violating a contract not to engage in the drug business, at Samson, Ala., for a period of three years. Decree for complainants, and respondents appeal.

Heard before Hon. W. H. Simpson. Bill by S. A. McCall, as administrator, against J. D. Hall to enforce a vendor’s lien. Decree for complainant for insufficient relief, and he appeals.

Heard before Hon. J. W. Mabry. Bill by George L. Baker, individually, and as executor and trustee, against Lillian H. Baker and others, to construe a will and quiet title to land devised thereby. Decree for complainants, and respondents appeal. The following is the copy of the will: “State of Alabama, Dallas County.

Heard before Hon. W. H. Simpson. Bill by J. H. Gunter and others, resident citizens and taxpayers of Jackson county, against J. B. Hackworth and others, members of the commissioner’s court of Jackson county, and another. Decree for respondents •on demurrer, and complainants appeal.

Heard before Hon. W. H. Simpson. Mortgage foreclosure suit by Mary A. Abney against George W. Abney and others. From a decree for complainant, defendants appeal. Complainant filed her bill of complaint praying for the foreclosure ■ of a certain mortgage given by her husband, B. I). Abney, on his homestead and transferred by the mortgagee to complainant.

Arpead from Birmingham City Court. Heard before Hon. H. A. Sharpe. Bill by Edward E. Dean against A. C. Roberts and others to cancel a conveyance as cloud on title, to cancel and annul a conveyance of lands by respondent, and to invest title in complainant. From a decree for respondents complainant appeals.

Heard before Hon. Lum Dijke. Bill by Annie E. Taylor against the Birmingham Lot Company to annul a mortgage. Decree for complainant, and defendant appeals.

Heard before Hon. L. D. Gardner. Bill by J. L. Harrell against O. H. Conoley, for an accounting and for discovery. From a judgment overruling demurrers to the amended bill respondent appeals. The complaint should have shoivn that the discharge ivas wrongful. — 4 Mayf. 128; 26 Cyc. 1003; 4 Pac. lili. The bill is not good as a bill for an accounting. — 4 Cyc. 438, 43 S. E. 702; 71 Atl. 391; Haynes v. Short, 88 Ala. 562; Gamble v. Altman, 125 Ala. 372, and cases cited.

Heard before Hon. H. A. Sharpe. Bill by Guiseppe Manfredo against Celestina Manfredo as administratrix, and individually, to remove an estate from the probate to the chancery court for the purpose of further and complete administration. From a decree overruling demurrers to the bill, and holding a plea in abatement not good, respondent appeals.

AppbaXj from DeKalb Chancery Court. Heard, before ITon. W. H. Simpson. Bill by the Ft. Payne Company against certain persons named therein in which Baxter as trustee in bankruptcy was admitted and defended. From a decree overruling a general demurrer to the bill, Baxter appeals.

Heard before Hon. Thomas H. Smith. Bill by Leila Hawthorne and others, against J. D. Jenkins and others, to cancel and annul certain deeds as void for undue influence in their procuring. Prom a decree for respondents complainants appeal.

Heard before Hon. A. H. Benners. Bill by Mary McLaughlin against the Sloss-Sheffield Steel & Iron Company to enjoin the obstruction of a highway, and to abate a nuisance. Prom a decree oyerruling demurrer to the bill as amended respondents appeal.

Heard before Hon. A. H. Benners. Bill by the First Avenue Coal & Lumber Company against Thomas McWilson to enforce a lien.

Heard before Hon. W. W. Whiteside. Bill by Charity C. Waters and others against the Gadsden-Alabama City Land Company and others to determine interest and for partition. Decree for .respondents, and complainants appeal.

Heard before Hon. Gaston Gunter. Bill by tbe City of Montgomery against the Greil Bros. Company to declare a lien npon the capital stock of said company and sell the same for payment of taxes due the said city. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. Thomas H. Smith. Bill by Norma Aildn and others, against B. F. McMillan, Sr., and others to clear up and settle doubts concerning land, and to enjoin trespasses until respondents should establish their title by an action at law. From a decree granting the injunction respondents appeal.

DeKalb Chancery Court. Heard before Hon. W. H. Simpson. Bill by Mollie Cogsdill against Hattie Rogers, Pallie Edmonds, and others. Decree for complainant, and respondent Pallie Edmonds and others appeal. The original bill was filed by Mollie Cogsdill against Hattie Rogers, averring their common tenancy of certain lands not capable of a fair division without a sale, and praying for such a sale.

Heard before Hon. A. H. Benners. Bill by Isham J. Dorsey, as executor, against Annie L. Thornton and others to quiet title to certain land. From the decree rendered for complainant Fred E. Enslen, one of the respondents appeal. The bill was not multifarious. — Reddick v. Long, 124 Ala. 260.

Heard before Hon. H. A. Sharpe. Bill by John Gaiter against W. B. Morgan, as administrator of Harry Wilson, and another, to enjoin the collection of assets of an estate. Decree for complainant, and respondents appeal.

Heard before Hon. W. H. Simpson. Bill by tbe Pt. Branch Milling Company against W. H. Aycock to declare a conveyance to him a general assignment inuring to the benefit of all the grantor’s creditors. Decree for complainant and respondent appeals. Under the facts there was a new consideration other than the old indebtedness for making of the bill of sale, and it did not constitute a general assignment for the benefit of creditors.

Heard before Hon. E. C. Crowe. Bill by B. A. Alford and others as creditors against the Union Bank & Trust Company for a receiver, and to administer its funds as a trust fund for the benefit of creditors. B. H. Wilkerson, as Superintendent of Education, on relation of the state, filed petition of intervention for him and the sureties on his official bond, seeking to impress a trust on a particular fund as a fund belonging to the state.

Heard before Hon. A. Latady, Special Chancellor. Bill by Joe Romano and others, against the Birmingham Railway, Light & Power Company, to enjoin the maintenance of a gas reservoir, and to abate it as a.nuisance. Prom a decree dismissing the bill complainants appeal. The minor sister was not a necessary party.— 16 Cyc. 184.

Heard before Hon. Thomas H. Smith. Bill by Annie Frederic as administratrix of the estate of William Scholtz, against Mary T. Wilkins to annul a deed because of mental incapacity of the grantor and undue influence on the part of the grantee. Decree for respondent and complainant appeals.

'Appeal from Blount Chancery Court. Heard before Hon. A. H. Benners. Bill by R. F. Trammell and others, against Calvin R. Mower, to cancel a mortgage for fraud, with cross-bill by respondent to foreclose said mortgage. From a decree granting the relief prayed in the cross-bill,- complainants appeal. The rule of law applicable to non est factum applies with equal force to chancery proceedings. — Noble v. Gillam, 33 South. 861.

Heard before Hon. Gaston Gunter. Bill by tbe Northern Alabama Railway .Company against the Alabama Railroad Commission, to enjoin the enforcement of an order requiring the construction of a union passenger depot, or in the alternative to enjoin the requirement that complainant enter and use a union station required to be erected by other roads entering the same city. Prom a decree for complainant the Railroad Commission appeals.

Heard before Hon. L. D. Gardner. Bill by P. H. Pitts, as administrator with the will annexed, against Jennie E. Darby and others, to determine whether or not the administrator can sell certain lands under the power contained in the will without an order of court, and, if not, to direct a sale of the land for distribution. Decree for respondents and complainants appeal.

Heard before Hon. E. C. Crowe. On bill filed by tbe Attorney General, the Union Bank & Trust Company, a private banking corporation, ivas declared insolvent, and Cobbs was appointed receiver. The court after hearing the matter allowed the claim of the Vizard Investment Company, and J. B. Cobbs as such receiver appealed from the decree.

Heard before Hon. E. C. Crowe. Bill by Alabama Johnson against Daniel Johnson, to restrain a writ of possession issued on a judgment in ejectment against her, and to declare a divorce decree rendered at her instance void. From a judgment sustaining demurrers to the bill complainant appeals. The decree was a muniment of title because if the decree was void the wife took the land as a homestead on the death of her husband, and if valid, Daniel Johnson, the father, was the heir.

<p> Bill to Set Aside Final Settlement and for an Accounting. </p> <p>1. Appeal and Error; Form of Decision; Lavo of the Case. — A determination on the former appeal that a bill contained equity, is the law of the case and will be followed unless determined to be erroneous.</p> <p>2. Courts; Province; Discussion of Facts. — A discussion by an appellate court of the facts of a case will not be indulged in unless it tends to illuminate some legal principle involved.</p>

Heard before Hon. A. H. Benners. Bill by F. A. Hearn against the Court of County Commissioners of Blount county, to restrain the issuance of certain county bonds authorized by an election under circumstances fully disclosed in the opinion. From a decree denying relief complainant appeals.

Heard before Hon. L. D. Gardner. Bill by S. L. Brewer against J. H. Ely and others for partition and division. Decree for complainant, and respondents appeals. The facts as found by the chancellor are as follows: “The original owner of the land in controversy was Mary E. Chesson, who died leaving five children as heirs, and among them was J. F. or Frank Chesson.

Heard Before Hon. W. H. Simpson. Bill by Lida C. King against the Corinth Bank & Trust Company, and others, to declare certain mortgages void because given as security for her husband’s debt, and to cancel same. Decree for complainant and respondents appeal. Counsel discuss the evidence with the insistence that it makes a very different case from that of Elkins v. Bank of Henry, 60 South. 96, and that under the authority of Hollingsworth v. Hill, 116 Ala. 184, and First Nat.

Heard before Hon. A. H. Benners. Bill by H. M. Hartón against E. F. Enslen and others, to enjoin an execution sale of land, and to declare a trust therein in favor of complainant. From a decree sustaining demurrers to the bill complainant appeals. The court erred in sustaining demurrers to the bill, as the parties can be placed in statu quo and complete justice be administered by setting aside the execution sale.

Heard before Hon. W. W. Whiteside. Bill by the Virginia-Carolina Chemical Company against B. A. Williams, for an accounting, and to hold him as trustee in the collection of certain notes. Decree for complainant and respondent appeals. The discharge of the bankrupt was a discharge of all provable debts against him, except such as were reduced to judgment before the discharge. — 17 A.B. R. 31; 19 A. B. R. 866; 12 A. B. R. 659; 22 A. B. R. 93; 195 U. S. 176.

Heard before Hon. L. D. Gardner. Bill by the Cloverdale Homes against the town of Cloverdale for mandatory injunction to compel said town to permit certain joinders to gas mains laid in its streets. From a decree for respondent on demurrer and on the merits, complainant appeals. The facts sufficiently appear in the opinion. The following are the ordinances referred to thereunder: “Section 1.

Heard before Hon. E. S. Lyman. Bill by Hayce Roycroft and others against John A. Jordan and others to reform and correct an alleged misdescription in a deed. Decree for respondents and complainants appeal. Exceptions to testimony not noted at the time of the examination of the witness is waived if not noted on the submission. — Ham v. Dadeville, 100 Ala. 199.

Heard before Hon. A. H. Alston. Impeachment proceedings by the state on the relation of Blackwell as solicitor against James S._ Nelson and others as jury commissioners of Morgan county. From a judgment impeaching the jury commissioners they appeal. The proceeding is quasi criminal, and the statutes and constitutional provisions governing the same must be strictly construed.

Heard before Hon. W. W. Pearson. Application by John M. Burch and another, executors, for mandamus, prohibition, or other remedial writ, directed to John B. Gaston, probate judge of Montgomery county, requiring said judge of probate to desist from compelling petitioners to file their accounts and vouchers for a settlement of the executorship of the estate of Florence H. Burch, deceased.

Birmingham City Court. Heard before Hon. C. C. Nesmith. In the matter of the Birmingham Southern Railway Company. The railroad company having returned its property to the board of assessment, and the board of assessment having raised its assessment, the railroad company appealed to the Birmingham City Court, where there was judgment sustaining demurrers to the complaint filed by the state, from which judgment the state appeals.

Heard before Hon. Armstead Brown. Petition by the State of Alabama, on the relation of the Continental Trust Company, against M. D. Still, as judge of probate, for mandamus requiring him to record a certain mortgage executed to the relator as trustee upon the payment of 15 cents per hundred words for recording, without requiring the payment of 15 cents per hundred dollars on the face of the mortgage debt thereby secured. Prom a decree denying the petition, relator appeals.

Heard, before Hon. M. Sollie. Action by J. E. Cummings against J. B. Long for the statutory penalty for cutting trees. Judgment for plaintiff and defendant appeals. This cause should be reversed on the authority of Long v. Cummings, 156 Ala. 577; s. c. 165 Ala. 342. It is necessary to maintain a suit of this kind for plaintiff to show legal title to the trees and that defendant cut them or carried them away knowingly or willfully. — 135 Ala. 515.

Appear from Clarke Circuit Court. Heard before Hou. W. J. Young, Special Judge. Ejectment by Annie Roberts Gay against Buck Fleming and others. Judgment for defendants, and plaintiff appeals. The parties to the suit claim from a common source, John W. Gay, the plaintiff as a daughter and heir of said Gay, and the defendants through a mortgage executed and delivered by the said John W. Gay to H: J. Savage, and mesne conveyances from Savage to defendant.

Heard before Hon. S. L. Brewer. Common law ejectment by the Central of Georgia Railway Company against the Alexander City Union Warehouse & Storage Company. Judgment for plaintiff and defendant appeals.

Heard before Hou. B. M. Miller. Ejectment by F. P. Duncan against L. P. de Yampert, and others. Judgment for defendant and plaintiff appeals. The indiscriminate use of the words “heir” and “children” show that the .draughtsman was unskillful and that they were used to designate the same class of persons. — May v. Ritchie, 165 Ala. 602; Gampbell v. Noble. 110 Ala. 382; Watson v. Williamson, 129 Ala. 362; Fincllay v. Hill, 133 Ala. 229.

Macon Circuit Court. Heard before Hou. S. L. Brewer. Ejectment by Mrs. M. L. Smith against Mrs. M. L. Roney. Judgment for defendant and plaintiff appeals. The ground of objection that the mortgage ivas the debt of the husband is a valid objection at law rendering the mortgage absolutely void upon proof of that fact. — Price v. Cooper, 26 South. 238; Richardson v. Stevens, 122 Ala. 301. The court therefore erred in overruling demurrers to the pleas setting up res adjudicata.

Heard before Hon. E. C. Crowe. Action by Charles C. Cockrum against the People’s Home Telephone Company for damages for injuries to his wife. From a judgment for plaintiff, defendant appeals. Cockrum’s wife, while passing along Nineteenth street in Birmingham, came in contact with a wire hanging down from one of appellant’s telephone poles, and was greatly shocked thereby. The questions raised on the pleading are those discussed in the opinion.

Heard before Hon. William M. Walker. Action for personal injuries by D. W. Jamar against the St. Louis & San Francisco Railroad Company. Verdict and judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Pearson. Action by Eugenia S. Lee, as administratrix against the Citizens’ Light, Heat & Power Company, for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals.

Heard before Hon. William M. Walker. Action by Aurora E. Armstrong against Ira J. Sellers, Mrs. Sellers, and one Crenshaw. Plaintiff had judgment against Crenshaw, but judgment was rendered for the other named defendant, and plaintiff appeals. The automobile had not been registered as required by sections 3012-3015, and 6322-27, Code 1907, and the statute declares that it shall be unlawful for a person to operate such an automobile.

Heard before Hon. E. C. Crowe. Action by Mary Alice Vessel and others, as administrators, against the Seaboard Air Line Railway Company. From a judgment for defendant, plaintiffs appeal. Plaintiffs’ intestate was an assistant hostler on the Southern Railway engine, which was pulling a dead passenger train, and was killed in a collision between his engine and the Seaboard Air Line switch engine, at a crossing of the two roads near the terminal station of Birmingham.

Heard before Hon. C. C. Nesmith. Action by J. H. McCary, doing business, etc., against the Alabama' Great Southern Railroad Company for damages for setting fire to his property. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear in the opinion.

Heard before Hon. Gaston Guntek. Action by Margaret Anderson against John J. Robinson for damages for personal injuries on account of a defect in the flooring of a store rented by defendant to plaintiff’s husband. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Charles W. Ferguson Action by Levi Milbra, as administrator of the estate of Edward Milbra, against the Sloss-Sheffield Steel & Iron Company, for damages for the wrongful death of his intestate. Judgment for defendant and plaintiff appeals.

Heard before Hon. J. C. B. Gwin. Action by R. H. Rich and wife against the Jefferson Fertilizer Company for damages done their joint interest in their home and premises by the emission of noxious and unwholesome fumes and gases from defendant’s fertilizer, plant. Judgment for plaintiffs and defendant appeals. There was a misjoinder of parties plantiff. — 15 Ene. P. & P. 541; 30 Cyc. 112-15; 1 Sutherland on Damages, secs. 134-7-8.

Madison Circuit Court. Heard before Hon. A. H. Alston. Action by W. H. Bingbam against the Nashville, Chattanooga & St. Louis Railway for damages to stock. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by Arthur Capps, by his next friend, against the Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. The allegations of the sixth count sufficiently appear from the opinion.- The seventh count was based upon subdivision 1 of the.

Heard before Hon. James A. Bilbro. Action by A. S. Poindexter against the Coosa Pipe Foundry Company for damages for injuries received while in its employ. Judgment for plaintiff, and defendant appeals. Plaintiff was engaged as a molder by appellant, who operated a cast-iron soil pipe foundry, and while so engaged was badly burned about one foot and ankle, which resulted from an explosion in or fire shooting-out of a mold in which joints of pipes were being molded.

Heard before Hon. C. C. Nesmith. Action by America Merriweather as administratrix against the Sayre Mining & Manufacturing Company for damages for the death of her intestate from injuries received while pursuing his employment. Judgment for defendant and plaintiff; appeals.

<p> Injury to Servant. </p> <p>■ Master and Servant; Injury to Servant; Presumption and Burden of Proof. — While the doctrine of res ipsa loquitur may apply as between master and servant, not upon proof of injury alone, but where the circumstances attending the injury are sufficient to establish negligence without any direct proof thereof, yet where a count charged that the death of plaintiff’s intestate was proximately caused by the negligence of the defendant in failing to provide him with a safe place to work, proof of injury alone will not of itself relieve plaintiff from the necessity of proving the negligence charged, as the burden is on him to show the manner in which it was inflicted.</p>