Singer Sewing Mach. Co. v. Methvin
| Decision Date | 18 December 1913 |
| Citation | 184 Ala. 554,63 So. 997 |
| Parties | SINGER SEWING MACH. CO. v. METHVIN. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action by Jane T. Methvin against the Singer Sewing Machine Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
The complaint follows the Code form. The matter alleged in addition seems to be a history of what transpired at the house when the agent went to get the machine, detailing not only the conversation between plaintiff and defendant's agent but also the acts of the agent. The pleas referred to set up in effect that the injuries occurred by reason of an attempt on the part of the representative to procure possession of the sewing machine mentioned in the complaint after forfeiture under the contract under which said plaintiff had possession of the machine; and it is averred that plaintiff had expressly in writing waived any and all rights in action which she had or might have against the defendant growing out of or on account of any attempt on the part of defendant or its agent to secure possession of said machine.
Gaston & Pettus, of Birmingham, for appellant.
W.K Terry and W.T. Stewart, both of Birmingham, for appellee.
Appellee a female, sued appellant for an assault and battery by one of its agents in the attempt of the latter to collect a bill for the sale of a sewing machine.
The complaint followed the Code form, but, not being content with that, set out a great deal of the evidence by which plaintiff proposed to prove the facts necessary to support the action. This is a bad form of pleading and is not to be encouraged. The pleadings should allege the facts only which are necessary and proper to support the action or the defense and not the evidence by which the facts are to be proven. The defendant properly moved the court to strike parts of the allegations; and the court would not have been in error if it had stricken some of the allegations; but it affirmatively appears that no injury resulted to the appellant on account of such rulings. The allegations, or some of them, being descriptive of a particular assault and battery, they devolved upon the plaintiff the duty only to prove them as alleged; in other words, they imposed an unnecessary burden upon the plaintiff and none on the defendant.
The defendant also demurred to the complaint on the same ground, which demurrer was properly overruled. As we have repeatedly held, such matter is not ground of demurrer; but the complaint should be purged of such matter by motion to strike. The particular matter here alleged, while not necessary or proper in the pleadings, was admissible in evidence under proper allegations; and as the evidence itself, some of it in haec verba, was alleged, the plaintiff was not only authorized to prove it but was required to prove that which was descriptive of the particular offense or else fail on account of the variance.
There was therefore no error in overruling defendant's motion to exclude the evidence. When the unnecessary allegation is improper as proof as well as improper as pleading, and objection is interposed to the proof, then it is error not to exclude the evidence; but when, as here, it is proper as proof but not proper as pleading, it is of course not error to allow the proof, though the matter could and should have been expunged from the record proper on defendant's motion.
The defendant attempted to set up, as a defense to the action, a waiver of the right to maintain the action. The waiver relied upon was a part of the contract of sale of the sewing machine. There was no error in sustaining the demurrer to these special pleas. They were obviously frivolous as a defense to the action alleged in the complaint.
The record teems with assignments of error. The defendant seems to have objected to nearly all the evidence offered by the plaintiff, interposing objections to nearly all the questions propounded to each witness, then moving to exclude the answer, and reserving an exception to each adverse ruling. Many of these objections and exceptions are too frivolous and captious to merit treatment or consideration. We will, however, treat those which merit consideration.
There was no error in declining to allow the witness to testify to the mental condition or the physical appearance of the woman he saw at the house in which the alleged assault and battery occurred. The witness had stated that he did not know whether it was the plaintiff whom he saw; and of course it was wholly irrelevant and immaterial to...
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Nolin v. Town of Springville
...touching of another in a hostile manner. Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala.1986), citing Singer Sewing Machine Co. v. Methvin, 184 Ala. 554, 561, 63 So. 997, 1000 (1913). The court cannot but conclude that Isbell's "touching" of the plaintiff was hostile. Franklin v. City of H......
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Perkins v. City Of Creola
...violence to the person of another.’ ” Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala.1986) (quoting Singer Sewing Mach. Co. v. Methvin, 184 Ala. 554, 561, 63 So. 997, 1000 (1913) (emphasis added)).” Wood v. Cowart Enterprises, Inc., 809 So.2d 835, 837 ...
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Livingston v. Marion Bank & Trust Co.
...892 So.2d 346, 353 (Ala.2004) (quoting Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala.1986), quoting Singer Sewing Machine Co. v. Methvin, 184 Ala. 554, 63 So. 997, 1000 (1913) ). Ragan alleges that Taylor touched her face and played with her hair. She says that he frequently placed his ha......
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Murdoch v. Medjet Assistance, LLC
...v. Harbison , 489 So.2d 1097, 1104 (Ala. 1986) (internal quotation marks and emphasis omitted) (quoting Singer Sewing Mach. Co. v. Methvin , 184 Ala. 554, 63 So. 997, 1000 (1913) ). "Thus, to lay hands on another in a hostile manner is a battery, although no damage follows; but to touch ano......