Opinion
6 Div. 33.
August 22, 1944.
Appeal from Circuit Court, Jefferson County; Whit Windham, Judge.
Action on a policy of insurance by Morris Silverfield against Globe Indemnity Company. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Sirote Permutt, of Birmingham, for appellant.
J.P. Mudd and Roger F. Rice, both of Birmingham, for appellee.
Appellant is in no position to complain of the trial court's action in overruling his demurrer to appellee's special pleas, because there was a good plea — the general issue — before the court at the time appellant suffered the nonsuit and permitted judgment to be rendered in favor of appellee. Andrews v. Hall, 132 Ala. 320, 31 So. 356; Breitling v. Marx, 123 Ala. 222, 26 So. 203; Tobias v. Morris, 132 Ala. 267, 31 So. 498; Vines v. Buck, 207 Ala. 523, 93 So. 398; Bell v. Brotherhood, 214 Ala. 302, 107 So. 810; State v. Bates, 233 Ala. 251, 171 So. 370; White v. Equitable L.A. Soc., 24 Ala. App. 328, 134 So. 823; Shannon v. McClung, 210 Ala. 273, 97 So. 840; Watson v. B.R.L. P. Co., 150 Ala. 322, 43 So. 732.
To the complaint in this cause appellee filed Pleas A, B, and C. Plea A was the general issue. Pleas B and C were special pleas. Appellant addressed demurrers to Special Pleas B and C, which were overruled. On account of this ruling of the court, appellant took a non-suit and suffered judgment to be rendered against him and thereupon took an appeal to this court. He assigns here as error the action of the trial court in overruling demurrers to Special Pleas B and C.
No evidence was offered in support of the averments of the complaint notwithstanding the plea of general issue placed this burden on plaintiff. So long as the plea of general issue remained in the case, declining issue upon it was equivalent to confessing it, and thereby making a judgment in favor of defendant proper. On the refusal of the to plead further the judgment rendered by the court will be referred to the sufficient plea — in this case the plea of the general issue.
The cause must be affirmed and it is so ordered. The following list of authorities supports our affirmation: Puckett v. Pope, 3 Ala. 552; Firemen's Ins. Co. of Mobile v. Cochran Co., 27 Ala. 228; Brown v. Commercial Fire Ins. Co., 86 Ala. 189, 5 So. 500; Tobias v. Josiah Morris Co. et al., 132 Ala. 267, 31 So. 498; Andrews v. Hall, 132 Ala. 320, 31 So. 356; Cross v. Esslinger, 133 Ala. 409, 32 So. 10; Watson v. Birmingham R.L. P. Co., 150 Ala. 322, 43 So. 732; Culberson v. Empire Coal Co., 156 Ala. 416, 47 So. 237; Vines v. Buck, 207 Ala. 523, 93 So. 398; Bell v. Brotherhood of Railroad Trainmen, 214 Ala. 302, 107 So. 810; State ex rel. Chambers v. Bates, 233 Ala. 251, 171 So. 370; White v. Equitable Life Assur. Soc., 24 Ala. App. 328, 134 So. 823.
Affirmed.