This suit was brought by the appellee against appellant for damages because certain-employes of the appellant set fire to dry grass upon the right of way' of appellant, and negligently permitted the fire so set by them to spread to appellee’s land and destroy a lot of hay, ivhich Avas stacked about 200 yards from the right of way. There were several counts to the complaint, and in each count it is alleged that said fire was set upon the roadbed or right of way of the appellant by employes of the appellant, “while acting in the line of their employment or under instructions from their superior

When a cause of action is stated in a complaint in the alternative, if either alternative is insufficient, the whole count is bad.—Mayor and Aldermen of Huntsville v. Ewing, 116 Ala. 576, 22 South. 984. If the words “or under instructions from their superior” are stricken from the complaint in this case, the complaint is good, but so long as they remain in the complaint it is bad.

For aught the complaint shows, the employes who set fire to the grass on the right of way of appellant were its laborers in a bridge gang, having nothing to do with *580the right of way of appellant whatsoever, except in so far as the construction of bridges is concerned, and for aught the complaint shows the superior who ordered the grass to be set on fire was the foreman of a bridge gang, who had no authority, actual or apparent, to make such order. The law requires a complaint to state with certainty a cause of action, and for the above reasons, under one of the alternative averments of the complaint, a cause of action is not plainly stated. The alternátive averment, to which reference is had, fails to state that the superior who made the order was acting within the actual or apparent line or scope of his employment at the time the order was made, and for that reason is vicious.

It is probable that no injury was actually done the appellant by the defective, condition of the complaint, but the law says that the presumption of injury arises whenever error is shown, and, unless the record affirmatively rebuts the presumption of such injury,. a reversal of the judgment should follow. To quote the language of Lord Coke: “We will not change the law which always hath been used. It is better that it be turned to a default than the law should be changed or any innovation made.” 2 Coke upon Littleton, 282b.

Reversed and remanded.