Southern Hardware & Supply Co. v. Block Bros.

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 [83] 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 the appellant only. The appellant filed a plea of the general issue, and afterwards 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 South. 317; Foster v. Bush & Co., 104 Ala. 662, 16 South. 625. The first and second assignments of error relate to the refusal to give charges 1 and 2, which raise the defense that there was no such joint act or purpose as to justify the joining of the two defendants in one action. As before stated, the refusal of the court to allow the withdrawal of the plea and the filing of a demurrer was entirely discretionary with the court;, the reason being that the plea' of the general issue admitted the adequacy of the complaint “as a charge of joint tort against them, confessing, in other Avords, that if the separate negligence and the injury charged Avere proved they were jointly answerable in damages,” as well as severally. • — Richmond & Danville Railroad Co. v. Greenwood, 99 Ala. 511, 14 South. 495. Having filed the plea, carrying AAdth it such admission, the defendant could not claim it as a right that it be allowed to withdraw the plea and file a demurrer though the court could if he saAV proper [84] ~to do so, allow such withdrawal. As the record stands, then, the defendant must abide by the consequences of its plea, and could not test the question of joint liability by the charges requested. It may be said, also, that as the finding of the jury was in effect that the appellant was the only party liable for the negligence, the failure to instruct as to joint negligence could not injure it. This court has also recognized the propriety of a verdict against one, and not against the other, in a case like this. — Richmond, & Danville Railroad Co. v. Greenwood, supra. The newly discovered evidence claimed in the appli- • cation for a new trial was merely cumulative, and the ■court will not be placed in error for refusing it. The judgment of the court is affirmed. Affirmed. Anderson, McClellan, and Mayfield, JJ., concur.