Southern Hardware & Supply Co. v. Block Bros. Co.

• Court: Supreme Court of Alabama
• Citation: 50 So. 1036,163 Ala. 81
• Parties: SOUTHERN HARDWARE & SUPPLY CO. v. BLOCK BROS.
• Decision Date: 16 December 1909

50 So. 1036

163 Ala. 81

SOUTHERN HARDWARE & SUPPLY CO. v. BLOCK BROS.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Block Bros., as copartners, against the Southern Hardware & Supply Company and another. From a judgment against the defendant named, it appeals. Affirmed.

The pleas interposed by the Ogburn-Griffin Grocery Company are the general issue and several special pleas not necessary to be set out. The Southern Hardware & Supply Company filed only the general issue. Subsequently it entered a motion for leave to withdraw its plea of the general issue and to file certain demurrers to the complaint, which demurrers are set out in the transcript, which motion was disallowed. Charges 1 and 2 are as follows: (1) "The court charges the jury that if you believe from all the evidence that there was no joint act of the defendant, and that there was no joint purpose to be accomplished by them, then your verdict should be for the defendant." (2) "If the jury is reasonably satisfied from all the evidence that there was no joint act performed by these defendants, and that their acts did not co-operate together to produce the injurious results complained of, then your verdict should be for the defendants."

McIntosh & Rich, for appellant.

Gregory L. & H. T. Smith, for appellees.

SIMPSON J.

This suit was brought by appellees against the appellant and Ogburn-Griffin Grocery Company for damages for injury to an automobile. The complaint alleges that the Ogburn-Griffin Grocery Company, through their agents and servants negligently allowed a team, consisting of a mule and a dray to stand upon a street of Mobile without being tied or attended; that appellant, through its agent, etc negligently allowed a portion of the load on one of its drays to strike the mule of the Ogburn-Griffin Grocery Company which striking, together with the fact that said mule was not tied or attended, caused said mule to run away, and that, in so running, it or the dray ran into the automobile, causing the damage complained of. The verdict was against appellant only.

The appellant filed a plea of the general issue, and afterward filed a motion to be allowed to withdraw the plea and interpose a demurrer, which motion was overruled by the court. This was a matter within the discretion of the court, and not reversible. Gaines v. Bank, Minor, 50; Martin v. Dortch, 1 Stew. 479; Hair v. Moody, 9 Ala. 399; Steele v. Tutwiler, 57 Ala. 113; Donald Bros. & Co. v. Nelson & Sons, 95 Ala. 111, 10 So. 317; Foster v. Bush & Co., 104 Ala. 662, 16 So. 625.

The...