The questions presented will be treated as argued by counsel. Appellee's counsel concede that the motion for a new trial practically presents all matters urged as error by appellee in its cross-assignments of error, under section 6091 of the Code. Yates Mach. Co. v. Taylor, 215 Ala. 311, 110 So. 396.
This is the second appeal, 214 Ala. 522, 108 So. 539. The action was for damages, under the Homicide Act (Code 1923, § 5696), for the death of appellant's intestate, the result of an assault by a city employee while guarding said intestate in the work of digging and loading slag for use in repairing the streets of Anniston.
The defendant pleaded the general issue and two special pleas, 3 and A. The sufficiency of plea 3 was condemned on the former appeal. Plea A filed on the last trial is to like effect — that said intestate was a prisoner serving a sentence for fine and costs imposed under the city's ordinance, was put to work as a convict at hard labor for the city, was guarded by McCardle, the person alleged to have struck said intestate, who was convict guard of the city, "charged with the duty of guarding said intestate." And plaintiff's demurrer was sustained to plea A under the influence of the former decision and announcements of error in overruling demurrer to plea 3. When plea A is referred to the complaint, there was no error in sustaining demurrer to that plea, is the view of Justices SAYRE, BOULDIN, and BROWN, joining with the writer. We have no desire to depart from the previous decision in this case, believing it to be well founded, and on this question Mr. Chief Justice ANDERSON, SOMERVILLE, and GARDNER, JJ., adhere to their view expressed on the former appeal.
The issues of fact were on conflicting evidence of a wrongful assault proximately causing death and that tending to show that the death of said intestate was the result of alcoholic poisoning. The verdict was for plaintiff. The grounds of the city's motion for a new trial, which was granted, and from which the appeal is taken, among others, were the following:
"Said verdict and judgment are contrary to law.
"Said verdict and judgment are contrary to the evidence.
* * * * * * * *
"Said verdict upon which said judgment is based is a quotient verdict and improperly and unlawfully arrived at, in that the members of the jury agreed in advance each one to designate such amount of damages, if any, as the jurors wished to assess, to aggregate said amounts, to divide the aggregate sum by 12, and to let the quotient of such division represent the amount of damages assessed against the defendant.
"The court erred in sustaining demurrers to defendant's plea A, filed October 11, 1926."
We have indicated there was no error in sustaining demurrers to plea A. And the question of quotient verdict is not necessary to be decided.
Applying the rule of Cobb v. Malone, 92 Ala. 630, 9 So. 738, to all of the evidence adduced on the trial before the judge hearing and granting the motion for a new trial, all the Justices agree that the trial court's judgment will not be disturbed.
The judgment of the circuit court is affirmed.
All the Justices concur.