The application for rehearing does not at all question the law of the case as set forth in the foregoing opinion.
The only argument presented in the brief for rehearing — it was not suggested before — is the application to the action of the court in overruling the defendant's (appellant's) demurrer to plea 9, reviewed in the original opinion, of the rule the brief thus quotes from National Park Bank v. L. N. R. R. Co., 199 Ala. 192, 74 So. 69, 71:
"The rule prevailing in this state is that, where there are several grounds of demurrer, some of which are sufficient and others insufficient, and the judgment sustaining the demurrer is general, the ruling will be referred to the grounds that are well taken. Steiner v. Parker Co., 108 Ala. 357, 19 So. 386; Tatum v. Tatum, 111 Ala. 209, 20 So. 341; Richard v. Steiner Bros., 152 Ala. 303, 44 So. 562; McDonald et al. v. Pearson, 114 Ala. 630, 641, 21 So. 534; Hull v. Wimberly Thomas Hdw. Co., 178 Ala. 538, 59 So. 568."
The rule as thus reproduced is correct and had been repeatedly previously stated by this court. Its application to the state and point of the pleading in the present instance is the only subject of inquiry at this time. The complaint contained counts 1 and 2. The former (1) attributed plaintiff's injury to simple negligence. In the latter count (2) it appears to have been the pleader's purpose to attribute the injury to wanton wrong. Whether this intent was appropriately expressed in the averments of count 2, under the rule of Birmingham Ry., etc., Co. v. Brown, 150 Ala. 327, 43 So. 342; Woodward Iron Co. v. Finley, 189 Ala. 634, 66 So. 587, among others, is not a question necessary to be considered or decided. It is assumed, for the occasion only, that count 2 is an effective wanton count, and that a plea of contributory negligence is no bar to a recovery on a wanton count.
Plea 9 was one of eight special pleas (2 to 9, inclusive), addressed to the complaint as a whole and to each count of the complaint, separately and severally. To all of these pleas (2 to 9, inclusive) the plaintiff filed demurrers. One of the grounds assigned against plea 9 — the only one referred to or relied on in the brief on rehearing — is that numbered 4, which reads: "For that said plea is no answer to the second count of the complaint which charges wantonness." The judgment of the court on the demurrers to pleas is as follows:
"Plaintiff files demurrers to pleas. Which demurrers are by the court heard and considered and the court is of the opinion said demurrers are well taken as to all of said pleas except plea *Page 644 of general issue. It is therefore considered and adjudged by the court, and it is the judgment of the court, that demurrers be and they are hereby sustained to all of said pleas except plea of general issue."
It is manifest that the rule quoted above has no application in this instance. Here plea 9 was interposed as a distinct, separate plea in bar to count 1, as well as to count 2. The fourth ground of demurrer, if it was anything more than a general ground, only assailed it as a sufficient answer to count 2. That ground did not question the sufficiency of plea 9 as a sufficient or efficient answer to count 1. In other words, plea 9 was not at all assailed, not questioned in so far as it was separately and severally addressed, standing as an independent plea, to count 1. Had ground 4 been the only ground in the demurrer (the other grounds were not well taken, as decided in the original opinion), it is obvious that the plea (9) would not have been demurred to in respect of its distinct quality as an answer to count 1. The familiar rule, quoted ante, is simply that the propriety of the action of a trial court in sustaining a demurrer that contains good and bad grounds will be referred to the good grounds; this for the reasons indicated in response to rehearing in Cahaba Coal Co. v. Elliott, 183 Ala. 307-310, 62 So. 808. In this instance there was no ground numbered 4 to which the action of the court in sustaining demurrer to plea 9 as an answer to count 1 could be referred.
In Hull v. Wimberly Thomas Hdw. Co., 178 Ala. 538, 546,59 So. 568, in the majority opinion, the demurrer was overruled; and, notwithstanding the dissenting view (178 Ala. 551,552, 59 So. 572, 573), it was held that, under the limited assignment of error there made, error could not be imputed to the trial court. As appears, that decision is without bearing here.
The application for rehearing is denied.