There were several counts declaring for damages on the several assignments of personal and property injuries. All counts, except G, were subject to demurrer for failure of observance of statutory notice to be given and proven in such actions against a municipality. City of Birmingham v. Jeff,236 Ala. 540, 184 So. 281; Brannon v. City of Birmingham, 177 Ala. 419,59 So. 63. All counts were submitted to the jury and there was a general verdict for the plaintiff.
If there was evidence to support count G, the verdict may be referred to that count. Such are the decisions of the Court of Appeals by Mr. Justice Samford. American Bankers' Ins. Co. v. O'Neal, 25 Ala. App. 559, 150 So. 562; Bates v. Turney,26 Ala. App. 98, 153 So. 782. This rule has its limitations. That is to say, it must be shown that such action of the court was error without injury. The appeal is by the city on the record, and the trial is not illustrated by a bill of exceptions.
The Court of Appeals among other things observes, 197 So. 46:
"Each of the amended counts stated separate and distinct causes of action, each claiming damages for an overflow of water occurring on a date different from any date named in any of the other counts of the complaint as amended.
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"Each of the counts in the amended complaint claims damages for a separate act, and failing to allege that such claim had been filed with the City Clerk, as required by the above quoted Act, was subject to demurrer. Grambs v. City of Birmingham,202 Ala. 490, 80 So. 874; Barrett v. City of Mobile et al.,129 Ala. 179, 30 So. 36, 87 Am.St.Rep. 54; Ex parte First Nat'l. Bank of Montgomery, 206 Ala. 394, 90 So. 340; Ex parte City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281.
"The verdict of the jury was general and referable to either count in the complaint, and the overruling of demurrer to the bad counts constituted error.
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"Since the adoption of Supreme Court Rule 45, (175 Ala. xxi), it has been consistently held that the burden is on the appellant to show to the Court that error, if committed, probably affected injuriously, substantial rights of the appellant; otherwise there can be no reversal."
That is to say, the holding of the Court of Appeals was error without injury in submitting to the jury the several counts that were subject to demurrer and declaring for separate and distinct causes of action and injuries different from those on which the good count G was rested.
This decision is contrary to the rule announced and which obtains in this court. In the case of Bieker v. City of Cullman, 178 Ala. 662, 59 So. 625, 626, the Supreme Court of Alabama said: "It is insisted that, if error, it was without injury, because plaintiff was entitled to the same relief and damages, under other counts upon which the trial was had, that he could have obtained under this count. To this we cannot agree. We find no one of the counts, to which the demurrer was overruled, that was even practically a duplicate of count 3. Evidence would probably have been admissible under that count that would not have been admissible under any one of the other counts. We are unable to say that this error was without injury."
And again in Alabama Power Co. v. Lewis, 224 Ala. 594,141 So. 229, 230, this Court said: "It is apparent that under count 2, which is confessedly good, all testimony competent under the first count might have been introduced. It was incumbent upon the plaintiff to make the same proof and the same degree of proof under count one, as the case was developed, *Page 27 as she was required to make under count 2. And likewise, the same defense open to defendant under count 1 was available to it under count 2."
Many cases illustrating by analogy this application of the rule are noted in Ala. Southern Digest, Vol. 2., under the title of Appeal and Error, 1040(11), p. 399, et seq.
It follows from the foregoing that the Court of Appeals announced the correct rule, but improperly applied the same as error without injury under the decisions in Henderson v. Tennessee Coal, Iron Ry. Co., 190 Ala. 126, 67 So. 414. It is said in the last cited case that, "Where the error complained of relates to the pleading alone, and the appeal is only on the record, and there was no nonsuit, but the trial was had on the facts and merits, there should be a bill of exceptions showing that the errors complained of as to the rulings on the pleadings were involved on the trial and were among the issues on which the case was decided."
In Lloyd v. Central of Georgia Ry. Co., 200 Ala. 694,77 So. 237, 238, it was said: "The record contains no bill of exceptions, but the instructions to the jury which are incorporated in the record sufficiently indicate that the error in this regard was probably prejudicial to plaintiff. Rule 45, 61 So. ix; Henderson v. Tennessee C., I R. Co., 190 Ala. 126,67 So. 414."
Here the record contains the charges and shows the issues of fact were submitted on all counts of the complaint and that the counts claimed for different damages. Wilson v. Owens Horse Mule Co., 14 Ala. App. 467, 70 So. 956. Hence it was the duty of the City of Birmingham in the case before us to show by a bill of exceptions that (1) there was competent evidence to support count G which was free from the grounds of demurrer directed thereto: (2) to indicate by the record and bill of exceptions that there was prejudicial error in submitting to the jury the several counts subject to demurrer along with count G which was free from demurrer: and (3) that such trial was prejudicial. There being no bill of exceptions, the record considered with the several charges of the court given and those refused indicates that there were errors committed on the trial.
The writer believes that the foregoing rules govern the duty of appellant under such circumstances and that the record proper shows that the judgment of the Court of Appeals is laid in error. Therefore, the writer is not in accord with the majority opinion that the writ should be denied and hence dissents from such ruling of the court.