Cauble v. Boy Scouts of America

Decision Date16 October 1947
Docket Number6 Div. 521.
Citation33 So.2d 461,250 Ala. 152
PartiesCAUBLE v. BOY SCOUTS OF AMERICA et al.
CourtAlabama Supreme Court

Rehearing Denied Jan. 22, 1948.

M B. Grace and R. J. Hagood, both of Birmingham, and Geo. D Finley, of Tarrant City, for appellant.

Lange, Simpson, Robinson & Somerville, of Birmingham, for appellees.

LAWSON Justice.

From the pleading in this case, it appears that Frank Alamong Cauble, fourteen years of age, was on or about June 9, 1945 a member of Birmingham Troop No. 7, Boy Scouts of America and that on said date while on a hike or outing with members of his troop he was drowned in the Cahaba River.

This suit to recover damages for the death of young Cauble was brought by his father against (1) Boy Scouts of America, a corporation, (2) Birmingham Troop No. 7, Boy Scouts of America, an unincorporated organization or association, (3) Monte T. Tice, as scoutmaster of Birmingham Troop No. 7, Boy Scouts of America, and (4) George L. Simcox, as executive secretary or officer of Boy Scouts of America, a corporation. By amendment the Boy Scouts of America, a corporation incorporated under the laws of the State of Alabama, was made a party defendant. All the defendants with the exception of the one added by amendment interposed demurrer to the complaint as amended. The demurrers having been sustained, the plaintiff suffered a nonsuit and has appealed as authorized by the statute. § 819, Title 7, Code 1940.

As originally filed, the complaint contained two counts. Demurrers were sustained thereto, whereupon plaintiff amended Count 1. In so far as the record discloses, no attempt was made to amend Count 2. As above indicated, after demurrer was sustained to Count 1, as amended, plaintiff suffered a nonsuit and appealed. On this appeal we are limited to a consideration of only such rulings of the court as culminated in and superinduced taking of nonsuit entered in the cause on October 8, 1946. In other words, the question before us is simply whether or not Count 1 of the complaint, as amended, was sufficient as against the demurrers interposed by the several defendants. The action of the trial court in sustaining the demurrer to the original complaint is not before us for review, and we are without authority to review it. If the plaintiff had desired a decision upon the question presented on demurrer to the original complaint, he could have declined to plead further after the demurrer to the original complaint was sustained and, in this way, have presented to us, in the way provided, that question for review. The plaintiff did not see proper so to do. Calvert v. J. M. Steverson & Sons Lumber Co., 244 Ala. 206, 12 So.2d 365; Mullins v. Alabama Great Southern R. Co., 239 Ala. 608, 195 So. 866; Alabama Great Southern R. Co. v. H. Altman & Co. et al., 191 Ala. 429, 67 So. 589. There is no question of cumulative rulings inducing the nonsuit. The judgment entry affirmatively shows that the nonsuit was taken 'because of adverse rulings of the court in sustaining demurrers to complaint as last amended.' See City of Mobile v. Board of Revenue and Road Commissioners of Mobile County, 219 Ala. 60, 121 So. 49.

The general rules of pleading require that the cause of action be stated with sufficient certainty, clearness and precision to enable the defendant to prepare to defend himself against the action and plead a judgment thereon in bar of another recovery. Chapman v. Weaver, 19 Ala. 626; Shepherd v. Parker, 157 Ala. 493, 47 So. 1027; Weller & Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L.R.A.,N.S., 1106; Alabama Great Southern Ry. Co. v. Cardwell, 171 Ala. 274, 55 So. 185. A complaint...

To continue reading

Request your trial
15 cases
  • International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O. v. Russell, 8 Div. 751
    • United States
    • Alabama Supreme Court
    • March 22, 1956
    ...to prepare to defend against the action and so as to allow the court and jury to understand the allegations. Cauble v. Boy Scouts of America, 250 Ala. 152, 33 So.2d 461; Dudley v. Martin, 241 Ala. 435, 3 So.2d 7; Alabama Great Southern R. Co. v. Cardwell, 171 Ala. 274, 55 So. 185; Weller & ......
  • Foreman v. Dorsey Trailers
    • United States
    • Alabama Supreme Court
    • October 11, 1951
    ...Southern R. Co. v. H. Altman & Co., 191 Ala. 429, 67 So. 589; Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Cauble v. Boy Scouts of Am., 250 Ala. 152, 33 So.2d 461. The other assignments of error go to the ruling of the court holding that pleas IX and XI, respectively, are free from t......
  • Almon v. Commission of Ed. of Cullman County
    • United States
    • Alabama Supreme Court
    • January 17, 1957
    ...R. Co., 239 Ala. 608, 195 So. 866; Calvert v. J. M. Steverson & Sons Lumber Co., 244 Ala. 206, 12 So.2d 365; Cauble v. Boy Scouts of America, 250 Ala. 152, 33 So.2d 461; Foreman v. Dorsey Trailers, 256 Ala. 253, 54 So.2d 499; Poole v. William Penn Fire Ins. Co., 264 Ala. 62, 84 So.2d 333; C......
  • Carter v. City of Gadsden
    • United States
    • Alabama Supreme Court
    • August 18, 1955
    ...and superinduced the taking of the nonsuit. Mullins v. Alabama Great Southern R. Co., 239 Ala. 608, 195 So. 866; Cauble v. Boy Scouts of America, 250 Ala. 152, 33 So.2d 461. The practice of entertaining a motion by the defendant, at the conclusion of the plaintiff's evidence, to exclude the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT