
    188 So. 239
    DAVID v. TEMPLETON et al.
    6 Div. 372.
    Supreme Court of Alabama.
    March 30, 1939.
    Rehearing Denied May 4, 1939.
    Erie Pettus, of Birmingham, for appellant.
    Smith, Windham, Jackson & Rives, of Birmingham, for appellees.
   BROWN, Justice.

This appeal is by the plaintiff on the record, without bill of exceptions, from a judgment in favor of the defendants, entered on the verdict of the jury finding the issues in favor of the defendants.

The complaint consisted of three counts, numbered “One” “Two” and “Three.” The court sustained the defendants’ demurrer to counts 2 and 3, and the trial proceeded on count 1, and the plea of the general issue pleaded in short by consent with leave, etc.

The assignments of error predicated on ruling of the court on the demurrer to said counts 2 and 3 present the' only questions on this appeal. Said counts are subject to a common demurrable defect, and the demurrer aptly points out said defect; they fail to aver what instrumentality, under the control of defendants’ agent or servant, caused the injury. Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Alabama Power Co. v. Allen, 218 Ala. 416, 118 So. 662; Birmingham Ry., L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, 263.

The ruling of the court was free from error..

Affirmed.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.  