Sloss-Sheffield Steel & Iron Co. v. Milbra

Decision Date27 June 1911
Citation55 So. 890,173 Ala. 658
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Levi Milbra, as administrator, against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The pleadings noted in the opinion sufficiently appear therefrom. Charge 2, given for the plaintiff, is as follows "While, if the negligence of John Moore was the sole proximate cause of the death of Edward Milbra, plaintiff could not recover, yet if the jury are reasonably satisfied from the evidence that the defendant was guilty of negligence which proximately helped to cause the death of Edward Milbra then the negligence, if any, of John Moore, even though it also helped to cause the death, would be no answer to the said negligence of the defendant, if any."

Tillman Bradley & Morrow and L. C. Leadbetter, for appellant.

Bowman Harsh & Beddow, for appellee.


This action is by Levi Milbra, as personal representative, to recover damages for the wrongful death of his intestate, Edward Milbra.

The complaint joins counts under the employer's liability act (Code 1907, § 3910) with counts under the homicide act (Code 1907, § 2486). The complaint was filed on the 15th day of June, 1909, and on the 23d day of June, eight days thereafter, the defendant filed the following plea in abatement of the action, which was sworn to: "Now comes the defendant in the above- entitled cause, in its own proper person, and pleads in abatement to the suit filed in said cause that the plaintiff ought not to have and maintain this suit, for that, heretofore, to wit, on the 8th day of May, 1909, the administrator of this identical intestate, appointed by the probate court of Jefferson county, Alabama, instituted suit in the circuit court of Jefferson county, Alabama, which said court had jurisdiction of the parties and subject-matter of this suit, said suit being No. 8,108 in the circuit court of Jefferson county, against this identical defendant, upon the identical cause of action stated in the suit filed in this cause, which said suit is still pending in the said circuit court of Jefferson county, undisposed of; for that, long prior to the institution of the above-styled cause, this identical defendant impleaded in the said suit No. 8,108 in said circuit court in the identical cause of action heretofore instituted in said circuit court on the 8th day of May, 1909, as heretofore stated. Wherefore, the defendant prays judgment of this honorable court whether the plaintiff herein ought to further maintain this suit." No further pleadings were interposed nor action by the court taken until February 14, 1910, when separate and special demurrers were interposed to this plea in abatement, and were on the same date overruled.

The defendant on the same date filed a demurrer to the complaint, and pleas 1, 2, 3, and 5. Of these pleas, plea 1 was the general issue; plea 2 was contributory negligence; plea 3 was a plea of ne unques administrator; and plea 5 (as called on its face), a plea in abatement; but, in fact, law, and effect, it is a double plea--in bar and in abatement--in that it sets up facts which, if true, would be good in bar as a plea of ne unques administrator, and in abatement as a plea of another action pending. On the same day these pleas were filed, the court overruled demurrers to the third and fifth, and sustained demurrers to the second, and the trial was had on the first, third, and fifth pleas, resulting in verdict and judgment for the plaintiff. From such judgment, this appeal is prosecuted.

It therefore sufficiently appears that the court sustained a demurrer to the plea in abatement set out above, which was filed June 23, 1909, and it expressly appears that the court overruled a demurrer to plea 5. which is called a plea in abatement, but is, in effect, a plea both in bar and abatement. In this the trial court was in error in both instances. The plea set out above--and to which the demurrer was sustained--was a good plea in abatement, while plea 5 was bad, in that it joined matter, both in bar and in abatement; but the latter ruling is only material on this appeal on the question as to whether the sustaining of the demurrer to the other plea was error, without injury. We cannot say that such was without injury. In order to sustain the fifth plea, defendant would not only have to prove his plea in abatement, but also to prove his plea in bar, that is, a plea of ne unques administrator. Proof which would have supported a verdict under the second would not have supported one under the fifth.

We do not know upon what theory the trial court held this plea in abatement insufficient. It seems to conform to all the requisities of such pleas. It is true that at common law pleas in abatement were not favored. Defects in form, as to such, were treated as defects in substance as to pleas in bar; and all defects in such pleas, except for duplicity, were then reached by a general demurrer. The English statute of 4 Anne, c. 16, § 1, requiring special demurrers as to various causes, had no application to pleas in abatement. But by our statute of 1807 (Clay's Digest, p. 321) it became necessary to demur specially as to any defect of form in writs, complaints, pleas, or other pleadings. However, by the act of 1824 (Clay's Digest, p. 334), special demurrers, for all purposes, were abolished for all purposes, the statute providing that "no demurrer shall have any other effect than that of a general demurrer;" but this last act was held not to extend to pleas in abatement. Casey v. Cleveland, 7 Port. 445; Humphrey v. Whitten, 17 Ala. 30. But the Code of 1852 instituted a new system of pleading and practice in this state. Section 2236 of that Code (section 5330, Code of 1907) provided that pleas must consist of a sufficient statement of the facts relied on in bar or abatement of the suit, and no objection can be taken thereto, if the facts are so stated that a material issue can be taken thereto.

Since the Code of 1852, it has been ruled by this court that pleas in bar and abatement stand upon the same footing. Hall v Brazelton, 46 Ala. 359; Lang v. Waters, 47 Ala. 624; Mohr v. Chaffe, 75 Ala. 387. Many decisions of this court may be found cited in Mayfield's Digest, vol. 4, p. 499, and in note to section 5330 of the Code, under the different statutes which have governed in this state, and when the statutes change the law, of...

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10 cases
  • Ashurst v. Arnold-Henegar-Doyle Co.
    • United States
    • Alabama Supreme Court
    • March 23, 1918
    ... ... Found. Co. v. Laird, 189 Ala. 584, 588, 66 So ... 571; Sloss-Sheffield Co. v. Milbra, 173 Ala. 658, ... 661, 662, 55 So. 890; Campbell v ... ...
  • Lewis v. International Ins. Co.
    • United States
    • Alabama Supreme Court
    • November 23, 1916
    ... ... Mohr v. Chaffe Bros., 75 Ala. 387; Sloss-S.S. & ... I. Co. v. Milbra, 173 Ala. 658, 55 So. 890 ... We are ... of the opinion that ... ...
  • Hudson and Thompson v. First Farmers and Merchants Nat. Bank of Troy
    • United States
    • Alabama Supreme Court
    • March 7, 1957
    ...a plea to be good, it must set out facts which will show that the first action operates to abate the second. Sloss-Sheffield Steel & Iron Co. v. Milbra, 173 Ala. 658, 55 So. 890. The plea in this cause failed in this respect, and appellant's demurrer should have been It, therefore, follows ......
  • Dent v. Foy
    • United States
    • Alabama Supreme Court
    • June 30, 1921
    ... ... 262, Salmon v ... Wynn, 157 Ala. 112, 47 So. 233, and Sloss-Sheffield ... Steel & Iron Co. v. Milbra, 173 Ala. 658, 55 So. 890, ... merely ... ...
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