Huntsville Knitting Mills v. Butner, 8 Div. 929

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation200 Ala. 288,76 So. 54
PartiesHUNTSVILLE KNITTING MILLS v. BUTNER.
Docket Number8 Div. 929
Decision Date24 May 1917

76 So. 54

200 Ala. 288

HUNTSVILLE KNITTING MILLS
v.

BUTNER.

8 Div. 929

Supreme Court of Alabama

May 24, 1917


Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.

Action by Newt Butner against the Huntsville Knitting Mills for damages for injuries to his minor son. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 194 Ala. 317, 69 So. 960; 73 So. 907. [76 So. 55]

Cooper & Cooper, of Huntsville, for appellant.

R.E. Smith, of Huntsville, for appellee.

THOMAS, J.

This is the second appeal in this cause. See decision of first appeal reported in 194 Ala. 317, 69 So. 960.

The facts and issues on this appeal are so nearly identical with those passed upon on the former appeal that the summary of the complaint and cause of action noted in the first opinion is applicable here. The several counts were practically and in effect the same in averment. The suit was to recover damages for personal injuries to plaintiff's minor son; the gravamen of the action being that defendant employed plaintiff's son in a dangerous business, without plaintiff's consent. Defendant originally filed demurrers to the complaint, of dates October 13 and November 18, 1914. The judgment entry (of date February 15, 1916) recites:

"Plaintiff amends count 2 by striking out the words 'causing him intense suffering resulting in his permanent injury,' whereupon defendant withdraws demurrers and pleas heretofore filed, and files demurrers to the complaint which demurrers being considered and understood by the court are by the court overruled and disallowed. Whereupon defendant files pleas," etc

There is nothing in the record to show what the demurrers were, which were last filed to the complaint and were overruled by the court. The record also fails to disclose whether either or both of the demurrers originally filed to the complaint were refiled, and were the demurrers that were overruled by the court as recited in the judgment entry. We have, however, examined the first, third, and fourth counts of the complaint, and conclude that they were not subject to the demurrer originally filed thereto.

The court committed no error, as shown by this record, in striking pleas Nos. 2 and 3. The record discloses that pleas 2 and 3 were filed March 18, 1914, whereas the judgment entry on second trial recites that "pleas [76 So. 56] heretofore filed" were withdrawn. No other pleas appear thereafter to have been filed, except by the recital in the judgment entry as follows:

"Whereupon defendant files pleas 1, 2, and 3, and plaintiff moves the court to strike 2 and 3, which motion is granted by the court."

The action of the court in striking these pleas is not presented by bill of exceptions. Weller & Sons v. Rensford, 185 Ala. 333, 64 So. 366; Lynn v. Bean, 141 Ala. 236, 37 So. 515. This ruling appears only by the foregoing recitals of the judgment entry. It is not shown by a motion in writing, nor as a part of the record, as provided in the act of September 18, 1915 (Gen.Acts 1915, p. 598).

If the defendant relied upon any of the pleas theretofore withdrawn, they should have been refiled. L. & N.R.R. Co. v. Wood, 105 Ala. 561, 17 So. 41; B.R.L. & P. Co. v. Fox, 174 Ala. 657, 668, 56 So. 1013; C. of G. Ry. Co. v. Ashley, 160 Ala. 580, 49 So. 388; Syson Timber Co. v. Dickens, 146 Ala. 471, 40 So. 753. Nothing is presented for review by the ruling of the court.

However, the sufficiency of a plea should be tested by demurrer. Thus are its defects pointed out, and opportunity given for amendment. This right a defendant is denied by a motion to strike. We cannot say however, in the absence of the pleas, that they were not frivolous, irrelevant, or prolix. Dalton v. Bunn, 137 Ala. 175, 34 So. 841; L. & N.R.R. Co. v. Smith, 163 Ala. 141, 50 So. 241. If, however, as asserted by defendant, pleas 2 and 3 appearing in the record, were the ones stricken, no reversible error could result, for as said on former appeal of these very pleas no facts are alleged which are not available under the general issue. Huntsville Knitting Mills v. Butner, supra (194 Ala. 325, 69 So. 960); Clarady v. Abraham, 174 Ala. 130, 56 So. 720; Bynum v. Gold, 106 Ala. 427, 17 So. 667; Richardson v. Stephens, 114 Ala. 238, 21 So. 949; Baker v. Britt-Carson S. Co., 188 Ala. 225, 66 So. 475; Garner v. Morris, 187 Ala. 658, 664, 65 So. 1000.

Under the evidence in this case it was a question for the jury whether the father of the injured minor gave instructions that the boy should not be worked at the instrumentality--the wringer--causing his injury. Huntsville Knitting Mills v. Butner, supra. The court committed no error in denying the motion for a new trial. Cobb v. Malone, 92 Ala....

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12 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...out the defect and giving opportunity for amendment, if the plea be such as is subject to amendment. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Powell v. Crawford, 110 Ala. 294, 18 So. 302; Murphy v. Farley, 124 Ala. 279, 27 So. 442; McAnally v. Hawkins Lumber Co., 109 Al......
  • International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O. v. Russell, 8 Div. 751
    • United States
    • Supreme Court of Alabama
    • March 22, 1956
    ...and placing undue emphasis upon the evidence contained in interrogatories introduced by plaintiff. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Lester v. Jacobs, 212 Ala. 614, 103 So. Defendants' counsel objected to asking defendants' witnesses Duncan and Starling on cross-......
  • Liverpool & London & Globe Ins. Co., Limited, of England v. McCree, 6 Div. 301
    • United States
    • Alabama Supreme Court
    • October 15, 1925
    ...A.R. Co. v. Ventress, 171 Ala. 285, 54 So. 652; Southern Ry. Co. v. Jordan, 192 Ala. 528, 68 So. 418; Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; L. & N.R. Co. v. Kay, 8 Ala.App. 562, 62 So. 1014. The making of insurance contracts, oral and written, was discussed on former......
  • Jefferson v. Republic Iron & Steel Co., 6 Div. 537.
    • United States
    • Supreme Court of Alabama
    • May 11, 1922
    ...objection, and presented nothing for review. Sou. Rwy. v. Jordan, 192 Ala. 528, 531, 68 So. 418; Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54. Moreover, the evidence showed that the witness' long experience, knowledge, and familiarity with the facts qualified him to answer t......
  • Request a trial to view additional results
12 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...out the defect and giving opportunity for amendment, if the plea be such as is subject to amendment. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Powell v. Crawford, 110 Ala. 294, 18 So. 302; Murphy v. Farley, 124 Ala. 279, 27 So. 442; McAnally v. Hawkins Lumber Co., 109 Al......
  • International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O. v. Russell, 8 Div. 751
    • United States
    • Supreme Court of Alabama
    • March 22, 1956
    ...and placing undue emphasis upon the evidence contained in interrogatories introduced by plaintiff. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Lester v. Jacobs, 212 Ala. 614, 103 So. Defendants' counsel objected to asking defendants' witnesses Duncan and Starling on cross-......
  • Liverpool & London & Globe Ins. Co., Limited, of England v. McCree, 6 Div. 301
    • United States
    • Alabama Supreme Court
    • October 15, 1925
    ...A.R. Co. v. Ventress, 171 Ala. 285, 54 So. 652; Southern Ry. Co. v. Jordan, 192 Ala. 528, 68 So. 418; Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; L. & N.R. Co. v. Kay, 8 Ala.App. 562, 62 So. 1014. The making of insurance contracts, oral and written, was discussed on former......
  • Jefferson v. Republic Iron & Steel Co., 6 Div. 537.
    • United States
    • Supreme Court of Alabama
    • May 11, 1922
    ...objection, and presented nothing for review. Sou. Rwy. v. Jordan, 192 Ala. 528, 531, 68 So. 418; Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54. Moreover, the evidence showed that the witness' long experience, knowledge, and familiarity with the facts qualified him to answer t......
  • Request a trial to view additional results

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