ON REHEARING. On this application counsel reply on Slight v. Frix, 165 Ala. 230,51 So. 601, in support of the contention that the complaint in this case should be liberally construed; but an examination of the opinion in the Slight Case shows that it is not in conflict with the principle declared in the present case, in that in the Slight Case "no point was made, by demurrer or otherwise, to point out any defect in the complaint or variance between it and the affidavit." Counsel further insist that written charges 5, 6, 8, 9, and 11, which limited the question of negligence to be submitted to the jury to the conduct of, or management of the team by, the driver, were properly refused, in that they pretermitted the negligence of some other servant or employee of the defendant company in the matter of failing to warn the driver of the disposition of the horses. "When the gravaman of the action is the alleged nonfeasance or misfeasance of another, as a general rule it is sufficient if the complaint aver facts out of which the duty to act springs, and that the defendant negligently failed to do and perform. * * *" — Ensley v. Chewning, 93 Ala. 24, 9 So. 458. But notwithstanding the fact that under our system of pleading the negligent act or acts to be proved may be alleged in general terms, such act or acts must show or tend to show a breach of the duty alleged. In the present case when the complaint showed that the defendant was in charge or control of the horses on a public street along which the plaintiff was driving or being driven, it sufficiently alleged a duty on the part of the defendant not to negligently injure the plaintiff or the plaintiff's buggy. However, it will be noticed that the complaint with reference to the defendant's duty merely charges the defendant with "the charge or control of a team of horses attached to a vehicle" in a public street along which the plaintiff was driving or being driven. Construing the complaint most strongly against the pleader, we must hold that the only duty that the facts alleged show is a duty on the part of the defendant "in charge or control" of the horses in the public streets on or about a certain day, to so control or manage them *Page 515 at that time as not to negligently permit them to injure the plaintiff or her property.
(15) Counsel also insist that the charges referred to were properly refused, in that in the complaint the general averment of negligence contains the words "control" and "operation," in addition to the word "management," and that they do not have the same or a similar meaning. The word "management," as well as the word "operation," when used in a general administrative sense, as in the conduct or operation of a business, might in some instances be said to have a broader meaning than the word "control;" but, as used in this complaint, evidence which would be admissible with reference to either would be admissible with reference to the other. In other words, if this complaint had consisted of several counts, and the negligence in the separate counts had been alleged by the use of one of said words in each of the counts, the same proof that would be admissible under one count to show the breach of the duty alleged in that count would be admissible under each of the counts.
Application overruled.
EVANS, J., not sitting.