Southern Hardware & Supply Co. v. Block Bros. Co.

Decision Date16 December 1909
PartiesSOUTHERN HARDWARE & SUPPLY CO. v. BLOCK BROS.
CourtAlabama Supreme Court

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Block Bros., as copartners, against the Southern Hardware & Supply Company and another. From a judgment against the defendant named, it appeals. Affirmed.

The pleas interposed by the Ogburn-Griffin Grocery Company are the general issue and several special pleas not necessary to be set out. The Southern Hardware & Supply Company filed only the general issue. Subsequently it entered a motion for leave to withdraw its plea of the general issue and to file certain demurrers to the complaint, which demurrers are set out in the transcript, which motion was disallowed. Charges 1 and 2 are as follows: (1) "The court charges the jury that if you believe from all the evidence that there was no joint act of the defendant, and that there was no joint purpose to be accomplished by them, then your verdict should be for the defendant." (2) "If the jury is reasonably satisfied from all the evidence that there was no joint act performed by these defendants, and that their acts did not co-operate together to produce the injurious results complained of, then your verdict should be for the defendants."

McIntosh & Rich, for appellant.

Gregory L. & H. T. Smith, for appellees.

SIMPSON J.

This suit was brought by appellees against the appellant and Ogburn-Griffin Grocery Company for damages for injury to an automobile. The complaint alleges that the Ogburn-Griffin Grocery Company, through their agents and servants negligently allowed a team, consisting of a mule and a dray to stand upon a street of Mobile without being tied or attended; that appellant, through its agent, etc negligently allowed a portion of the load on one of its drays to strike the mule of the Ogburn-Griffin Grocery Company which striking, together with the fact that said mule was not tied or attended, caused said mule to run away, and that, in so running, it or the dray ran into the automobile, causing the damage complained of. The verdict was against appellant only.

The appellant filed a plea of the general issue, and afterward filed a motion to be allowed to withdraw the plea and interpose a demurrer, which motion was overruled by the court. This was a matter within the discretion of the court, and not reversible. Gaines v. Bank, Minor, 50; Martin v. Dortch, 1 Stew. 479; Hair v. Moody, 9 Ala. 399; Steele v. Tutwiler, 57 Ala. 113; Donald Bros. & Co. v. Nelson & Sons, 95 Ala. 111, 10 So. 317; Foster v. Bush & Co., 104 Ala. 662, 16 So. 625.

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11 cases
  • Valenzuela v. Sellers
    • United States
    • Alabama Supreme Court
    • February 24, 1949
    ...then sustained demurrer. The withdrawal of such an amendment was within the discretion of the trial court, Southern Hardware & Supply Co. v. Block Bros., 163 Ala. 81, 82, 50 So. 1036; Deholl v. Pim, 219 Ala. 372, 373, 122 So. 320; 41 Am. Jur. 511, § 318; 49 C. J. 660, § 935, and this court ......
  • Valenzuela v. Sellers
    • United States
    • Alabama Supreme Court
    • February 24, 1949
    ... ... Southern Hardware & Supply Co. v. Block Bros., 163 ... Ala. 81, ... ...
  • Fries v. Acme White Lead & Color Works
    • United States
    • Alabama Supreme Court
    • April 18, 1918
    ... ... Hight, 95 Ala. 284, 11 So ... 253; Southern Railway Co. v. Dickens, 149 Ala. 651, ... 43 So. 121; ... & P. Co., 147 Ala. 702, 41 So. 307; ... Southern Hardware & Supp. Co. v. Block Bros., 163 ... Ala. 81, 50 So. 1036; ... ...
  • Mixon v. Whitman
    • United States
    • Alabama Supreme Court
    • March 17, 1966
    ...of pleadings when request therefor is timely made. Valenzuela v. Sellers, 253 Ala. 142, 43 So.2d 121; Southern Hardware & Supply Co. v. Block Bros., 163 Ala. 81, 50 So. 1036. In the case last cited we 'The appellant filed a plea of the general issue, and afterwards filed a motion to be allo......
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