Brookside-Pratt Mining Co. v. Booth, 7 Div. 426.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation100 So. 240,211 Ala. 268
PartiesBROOKSIDE-PRATT MINING CO. v. BOOTH.
Docket Number7 Div. 426.
Decision Date17 April 1924

100 So. 240

211 Ala. 268

BROOKSIDE-PRATT MINING CO.
v.
BOOTH.

7 Div. 426.

Supreme Court of Alabama

April 17, 1924


Rehearing Denied May 15, 1924.

Appeal from Circuit Court, Shelby County; W. M. Lackey, Judge.

Action for damages for assault and battery by John T. Booth against the Brookside-Pratt Mining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. [100 So. 241]

p>Page S. Coleman, all of Birmingham, for appellant

Longshore, Koenig & Longshore, of Columbiana, for appellee.

THOMAS, J.

The suit was to recover damages for an assault and battery alleged to have been committed by defendant's agents upon plaintiff while he was at defendant's commissary. The trial was had on the second count of the complaint to which demurrer was overruled. The assignment of error challenging the ruling on demurrer is not insisted upon. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

The second, third, and fourth assignments of error challenge the sustaining of demurrers to pleas A, B, and E. Demurrers were overruled to pleas C and D. The insistence of appellant is that the latter pleas were drawn under section 7827 of the Code of 1907, while the pleas to which demurrers were sustained are not so drawn.

A rule of good pleading long prevailing is that whatever the parties respectively allege in their subsequent pleadings must be referred to, fortify, and support, respectively, the complaint or declaration of the plaintiff and the plea of the defendant. The observance of this rule is imperative to prevent an entire change of the "foundation of the action and of the defense" by "successive stages of the pleadings" and thus defeat the primary object of pleading. That is to say, the replication must so answer the plea as to support the complaint, and the rejoinder must so answer the replication as to support the plea. In the same manner, the surrejoinder must support the replication, "the rebutter the rejoinder, and the surrebutter the surrejoinder." The result of this rule, as said by Mr. Gould, the process being thus conducted, is that which is last pleaded on either side necessarily goes in support of what was first pleaded on the same side. Ex parte Hines, Sir. Gen. (Hines v. McMillan), 205 Ala. 17, 87 So. 691; Wills' Gould on Pleading (6th Ed.) p. 93.

We take as illustrations pleas D and E; the latter was eliminated by demurrer, probably on the ground that defendant's commissary was a public place for the retail sale of goods, wares, and merchandise usually sold to the public in such commissaries, and that plaintiff had the right to go there to buy (smoking...

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12 practice notes
  • State v. Avent, No. 654
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 20, 1961
    ...Annotation cites cases from eight states supporting the statement. See to the same effect, Brookside-Pratt Mining Co. v. Page 53 Booth, 211 Ala. 268, 100 So. 240, 33 A.L.R. 417, and Annotation in 33 A.L.R. This is said by Holmes, J., for the Court in Terminal Taxicab Co. v. Kutz, 241 U.S. 2......
  • Birmingham Ice & Cold Storage Co. v. Alley, 6 Div. 385.
    • United States
    • Supreme Court of Alabama
    • December 20, 1945
    ...v. McGreggors, 239 Ala. 467, 195 So. 736; Perry Supply Co. v. Brown, 221 Ala. 290, 128 So. 227; Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240, 33 A.L.R. 417. Where the owner or proprietor of a truck discovers a trespasser thereon in a position of imminent peril the failure ......
  • Milwaukee Mechanics Ins. Co. v. Maples, 8 Div. 12
    • United States
    • Alabama Court of Appeals
    • January 13, 1953
    ...a disputed claim * * * and plaintiff ought not to take advantage of said offer * * *.' As stated in Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240, 241, 33 A.L.R. 'A rule of good pleading long prevailing is that whatever the parties respectively allege in their subsequent pl......
  • Camp v. Milam
    • United States
    • Supreme Court of Alabama
    • January 25, 1973
    ...by the withdrawing of his permission. Messer v. City of Birmingham, 243 Ala. 520, 10 So.2d 760; Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240. At the root of this concept is the familiar and often quoted language from Thomas v. Sorrell, 124 Eng.Rep. 1098, 'A . . . licence p......
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12 cases
  • State v. Avent, No. 654
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 20, 1961
    ...Annotation cites cases from eight states supporting the statement. See to the same effect, Brookside-Pratt Mining Co. v. Page 53 Booth, 211 Ala. 268, 100 So. 240, 33 A.L.R. 417, and Annotation in 33 A.L.R. This is said by Holmes, J., for the Court in Terminal Taxicab Co. v. Kutz, 241 U.S. 2......
  • Birmingham Ice & Cold Storage Co. v. Alley, 6 Div. 385.
    • United States
    • Supreme Court of Alabama
    • December 20, 1945
    ...v. McGreggors, 239 Ala. 467, 195 So. 736; Perry Supply Co. v. Brown, 221 Ala. 290, 128 So. 227; Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240, 33 A.L.R. 417. Where the owner or proprietor of a truck discovers a trespasser thereon in a position of imminent peril the failure ......
  • Milwaukee Mechanics Ins. Co. v. Maples, 8 Div. 12
    • United States
    • Alabama Court of Appeals
    • January 13, 1953
    ...a disputed claim * * * and plaintiff ought not to take advantage of said offer * * *.' As stated in Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240, 241, 33 A.L.R. 'A rule of good pleading long prevailing is that whatever the parties respectively allege in their subsequent pl......
  • Camp v. Milam
    • United States
    • Supreme Court of Alabama
    • January 25, 1973
    ...by the withdrawing of his permission. Messer v. City of Birmingham, 243 Ala. 520, 10 So.2d 760; Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240. At the root of this concept is the familiar and often quoted language from Thomas v. Sorrell, 124 Eng.Rep. 1098, 'A . . . licence p......
  • Request a trial to view additional results

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