This appeal is from a nonsuit which was taken by appellant after the trial court had sustained the demurrer of appellee Trotman to all the amended counts of the complaint, and the demurrer of appellee Wilson was overruled as to Count II but sustained as to the other counts.
The counts, as amended, allege in general that appellant was injured when the car in which he was riding collided with an automobile being operated by Shan W. Wilson, deceased, after the Wilson car had collided with a bull, owned by appellee Trotman, which was in the highway.
Appellees filed a motion to dismiss the appeal on the ground that the judgment will not support an appeal because at the time of the taking of the nonsuit, Count II had been held good as against appellee Wilson and was still in the complaint when the .non-suit was taken.
Title 7, § 819, Code 1940, requires that it be necessary for the plaintiff to suffer a nonsuit and we have held that, ■“ * * * in determining from the record the question of necessity for the nonsuit vel non, it will be presumed that the party •pleading, whether plaintiff or defendant, is able to prove each count of the complaint, ■or each special plea in denial or avoidance of the cause of action. Hence, if there remain a single count of the complaint upon which the plaintiff can proceed, he must go on with his case. On the other hand, if there remain a single special plea in denial of his complaint as to which demurrers have been overruled, he is entitled to his nonsuit and review by appeal.” Kennedy v. Lyric Theatre Co., 213 Ala. 153, 104 So. 274. Under this authority, a good count against both of the defendants must have been dismissed to have entitled the plaintiff tó a nonsuit. Epperson v. First National Bank of Reform, 209 Ala. 12, 95 So. 343.
But here, appellant’s theory and the basis of his action is concurrent negligence of both appellees. The sustaining of the demurrer of one of the alleged tort-feasors to every count of the complaint seeking recovery for concurrent negligence effectively defeats the action and precludes recovery. Appellant had a right to preserve the integrity of his suit. Duncan v. Hargrove, 22 Ala. 150, 161. It follows that appellees’ motion to dismiss the appeal must be denied. See McSheridan v. City of Talladega, 243 Ala. 162, 8 So.2d 831, where, while the point was not raised, we did not dismiss the appeal in a similar situation.