Smiley, Son & Co. v. Keith, 57 So. 127

57 So. 127 | Ala. Ct. App. | 1911

PELHAM, J.

Suit was brought in the court below by the appellee against the appellants, seeking to recover damages for injuries to a piano alleged to have been occasioned by the negligence of appellant’s employes while moving it from the house in which appellee had been living to another. house which he rented, and to which he was removing his household effects; the appellants having undertaken for hire or reward in the course of their business to remove the piano.

“Smiley, Son & Co.”- were named as the parties defendant in the complaint, and appellants demurred to the complaint on the ground that it was not stated and did not sufficiently appear whether the defendant is a corporation, partnership, or individual. Appellants insist that the failure of the complaint to designate the defendant “Smiley, Son & Co.” either as a corporation or partnership renders it fatally defective, and that the court was in error in overruling the demurrer. The suit is against the common name, “Smiley, Son & Co.,” which fairly imports a partnership—(Birmingham Loan & Austion Co. v. First National Bank, 100 Ala. 251, 13 South. 945, 46 Am. St. Rep. 45), and section 2506 of the Code of 1907 authorizes a suit to he brought against a partnership in its common name. If the name can be said to fairly import either a partnership or an incorporated company, no incapacity to be sued appears on the face of the complaint; for, if a partnership or common name, section 2506 of the Code authorizes suit against it as such, and, if a corporation, it is suable by its corporate name without alleging corporate existence, and is not subject to demurrer founded on such objection. The demurrers to the complaint were not well taken.—Seymour & Sons v. Thomas Harrow Co., 81 Ala. 250, 1 South. 45; 10 Cyc. 1347, 1348.

The pleas of contributory negligence are manifestly insufficient, and none of them constituted a good answer to the complaint. The first plea of contributory negligence, designated as plea No. 3, fails to allege any knowledge on the part of plaintiff of the necessary number of men required to properly move the piano. Plea No. 4 neither traverses defendant’s negligence, nor avers any facts' of negligence upon- the part of plaintiff. The other special pleas were clearly defective and insufficient, and subject to the demurrers interposed to them. It does not appear to which count or counts of the complaint these special pleas of contributory negligence are directed. It is to be presumed that they are directed to each of the counts and one count claims punitive damages for wanton or intentional injury, and no error was committed by the court in sustaining demurrers to them.—City of Greenville v. Greenville Water Co., 125 Ala. 625, 27 South. 764; Smith v. Heineman, 118 Ala. 195, 24 South. 364, 72 Am. St. Rep. 150.

Charge No. 1 requested in writing by appellants and refused by the court exacts too high a measure of proof. The burden is not to show or prove facts certainly or absolutely by the evidence, but only to the reasonable satisfaction of the jury. —Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 South. 663; 6 Mayfield’s Dig. p. 340, § 105.

The general affirmative charges requested on the different counts of the complaint were properly refused, as the evidence on the question of defendant’s liability was in conflict, and its weight and sufficiency were questions for the jury on each of the counts submitted by the court to the jury for their determination.—C. of G. Ry. Co. v. Dothan M. Co., 159 Ala. 225, 49 South. 243.

The plaintiff testified positively that he engaged the defendants to move his piano at a stipulated price, which was paid, and the defendant’s responsibility for the negligent acts of the parties doing the moving did not rest alone upon ratification of their acts by defendants, as assumed by the charge made the subject of the sixteenth assignment of error.

We are cited to no authority in support of other refused charges, nor do the assignments of error as to them seem to be seriously insisted upon. They clearly are not such charges as the court can be put in error for refusing.

There is no reversible error shown by the record, and the case is affirmed.

Affirmed.