The third count of the complaint avers that the defendant —
"undertook to remove a cotton seed from the ear to plaintiff's minor son, * * * and to treat and care for said ear after the removal of said cotton seed, and plaintiff alleges that the defendant in attempting to remove said cotton seed so negligently or unskillfully probed or gouged into said ear as to rupture or lacerate the same, and did negligently or unskillfully treat or omit to treat after said rupture or laceration."
The conclusion is inescapable that the averments of the count conjoin as one and the same cause of action, the unskillful operation and negligent treatment, and this imposed on the plaintiff the burden of proving both of these material averments to establish the cause of action. Cardwell v. L. N. R. R. Co., 185 Ala. 628, 64 So. 564.
Charge A, given at the plaintiff's request, is in the alternative, and authorized a verdict for the plaintiff "if he so negligently or unskillfully undertook to remove the cotton seed, or if he unskillfully treated or omitted to treat the ear." The giving of this charge relieved the plaintiff of a part of the burden of proof assumed by his complaint, and in my opinion constitutes reversible error. Not only this the charge assumes and pretermits proof of the averment that in attempting to remove the cotton seed "negligently or unskillfully probed or gouged into said ear so as to rupture or lacerate the same."
It is too well settled that a charge which relieves a party of a part of the burden of proof which he assumes by his pleading is erroneous. Central Ice Co. v. Mitchell, 215 Ala. 688,112 So. 239.
ANDERSON, C. J., concurs in the foregoing dissent.