Worthington v. Davis

• Decision Date: 16 November 1922
• Docket Number: 6 Div. 685.
• Parties: WORTHINGTON v. DAVIS, DIRECTOR GENERAL OF RAILROADS.
• Court: Alabama Supreme Court

94 So. 806

208 Ala. 600

WORTHINGTON v. DAVIS, DIRECTOR GENERAL OF RAILROADS.

6 Div. 685.

Supreme Court of Alabama

November 16, 1922

Rehearing Denied Dec. 14, 1922.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Thomas Worthington against James C. Davis, as Director General of Railroads. After adverse ruling on the pleading plaintiff takes a nonsuit and appeals. Affirmed.

Brenton K. Fisk, of Birmingham, for appellant.

Stokely Scrivner & Dominick, of Birmingham, for appellee.

MILLER J.

Thomas Worthington brings this suit against James C. Davis, Director General of Railroads, as agent, under section 206 of the Transportation Act of 1920 (41 Stat. 461), operating the systems of the Louisville & Nashville Railroad Company Southern Railway Company, Alabama Great Southern Railroad Company, and Seaboard Air Line Railway Company.

The plaintiff sought damages for the violation or breach of a duty alleged to have grown out of a contract for the erection of the Twenty-First Street viaduct or bridge in the city of Birmingham, across the tracks of these railroads, which was made and entered into by him with the Southern Railway Company, which was not terminated by the defendant with plaintiff; but under it the defendant continued the work and assumed the benefits and obligations of the contract.

There are nine counts in the complaint, demurrers were sustained to each by the court, the plaintiff then took a nonsuit, there was judgment thereon by the court, and from this judgment plaintiff appeals, and the correctness of the rulings of the trial court on demurrers to these nine counts is before this court for its consideration by the errors assigned.

In counts 1, 2, 3, 4, and 5 plaintiff avers it was the duty of the defendants under the contract not to hinder, delay, embarrass, or interfere with him in the performance of his contractual duties in building this viaduct; and the defendant in breach of the contract continually hindered, delayed, embarrassed, and interfered with plaintiff in the work; and then each count alleges more than one and some as many as 10 or 11 different breaches of this stipulation or covenant of the contract. Each of these counts also avers that defendant "in many other ways hindered, delayed, embarrassed and interfered with plaintiff in and about the work," that time was expressly made of the essence of the contract; the bridge was to be constructed within nine months, and plaintiff was set back by these delays one year in finishing the work, and as a proximate result made it necessary for plaintiff to build a large portion of the structure when the wages and necessary materials were higher than they were during the time in which the viaduct would have been completed, except for the delays mentioned.

These counts were framed similarly to the averments in the complaint in the case of Del Genovese v. Railroad Co., 13 A.D. 412, 43 N.Y.S. 8, affirmed in 162 N.Y. 614, 57 N.E. 1108. The sufficiency of the complaint there does not appear to have been questioned and assailed by the same grounds of demurrer as in this case; the same question here does not appear from the record to have been raised there. However that may be, this court in Nave v. Berry, 22 Ala. 382, held:

"The rule in pleading, as we understand it, is, that where a contract contains several stipulations, the pleader may in each count assign as many breaches as he pleases; but each breach must be upon a distinct stipulation in the contract. On the other hand, he cannot assign two breaches in the same count, of one and the same stipulation, because that would be objectionable for duplicity. 1 Chit. Pl. 336."

In the same case this court held:

"If two breaches are assigned on the same stipulation, then a demurrer to the whole count would reach it."

This court again in Friddle v. Braun, 180 Ala. 562, 61 So. 61, declared this same rule on a count for damages for breach of a contract:

"In count 6, the plaintiff joined separate and independent actions, and this is forbidden, notwithstanding he might have set out each of them in the same complaint by separate and distinct counts. The trial court did not err in sustaining the defendant's demurrer to this count."

In Sibley v. Barclay, 14 Ala. App. 422, 70 So. 201, the rule in Nave v. Berry, 22 Ala. 382, was approved in this language:

"We are not unmindful of the rule that allows the plaintiff in an action of assumpsit to assign several breaches of the contract in the same count. Sloss Iron & Steel Co. v. Macon County, 111 Ala. 555, 20 So. 400. But, to avoid duplicity in pleading, this rule is subject, to the limitation that two or more breaches of the same covenant or stipulation must not be stated in a single count. Nave v. Berry, 22 Ala. 382; 9 Cyc. 730; Birmingham Railway, L. & P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361."

Counts 1, 2, 3, 4, and 5, each set up more than one separate and independent breach of the same stipulation or covenant in this contract. More than one cause of action based on the same implied covenant or stipulation in the contract, not to delay him in its performance, is averred in each of these counts. This renders each count defective for duplicity in pleading, and subject to the demurrer of the defendant. Each of these counts charges a violation of the implied covenant or stipulation not to hinder, delay, embarrass or interfere with plaintiff in his contractual duties in building the viaduct; and count 1 then avers:

"But the said Director General, in breach of said contract, continually hindered, delayed, embarrassed, and interfered with the plaintiff in said work; prevented him from going on and finishing the same in a reasonable and proper manner; forced him to keep his working forces, teams, and machinery working at low efficiency through disorganization for long periods of time; forced the plaintiff to take out a large portion of the excavated material by manual labor and the use of wheelbarrows instead of removing it by the use of a steam derrick and teams; forced him to handle and rehandle several times a large portion of the excavated material before removing the same; required him to move and place heavy timbers and other construction materials by manual labor in close quarters, instead of moving and placing them by the use of a steam derrick in the open; made unreasonable requirements for extra work in connection with the building of the viaduct or incidental thereto; required the plaintiff to tear out or remove timbers which he had placed under the supervision of one R. C. Bryant, the duly authorized representative of the Director General's Chief Engineer of Construction acting in the line and scope of his duties as such representative in accordance with the contract and to use in lieu thereof special construction materials which could be obtained only with delay to the plaintiff in the building of the viaduct; successively damaged or tore out portions of the plaintiff's set timbers or forms by wrongfully causing or allowing trains, locomotives, or cars, to strike them; required portions of the viaduct which had been completed or partially completed in strict accordance with the contract to be torn out and rebuilt in a changed form or manner, and in many other ways, hindered, delayed, embarrassed, and interfered with the plaintiff in and about the said work."

This combines in one count numerous distinct breaches of the same stipulation against delay. Count 1 contains 11 separate, distinct breaches of the expressed or implied stipulation or covenant of duty alleged to be in the contract not to hinder, delay, embarrass, or interfere with plaintiff in his contractual duties in constructing the viaduct. Counts 2, 3, 4, and 5 contain at least 2 or more of these same breaches. If such numerous, distinct breaches of one expressed or implied duty in a contract are permissible in one count, then the court would be forced to permit the defendant, in answering it, to combine and incorporate in one plea at least 11-one for each breach-separate and distinct defenses to the 11 separate, distinct, breaches in the one count. There should also, if necessary, be allowed 11 or more separate, distinct replications in one and 11 or more rejoinders in one. This would so mix and mingle the actions and the defenses to them that the court and jury would be confused and the issue obscured. They, the court and jury, under such pleading could not keep clearly informed of the matter or matters in issue. In L. & N. R. Co. v. Gray, 154 Ala. 200, 45 So. 299, this court wrote:

"It is not objectionable to rely on two or more grounds or usurpation in one information; but each ground should be stated in a separate count or paragraph, in order to attain that perspicuity and certainty which is required by the statute in such proceedings."

And the court then made with approval this quotation from the Dusenberry Case in 94 Ala. 413, 10 So. 274:

"Inextricable confusion of issues would result from the blending in one count of a number of distinct breaches of duty as independent grounds of recovery, to be chosen from and relied on at the election of the plaintiff."

The rule in Nave v. Berry, 22 Ala. 382, appears to be correct. It seems to meet the approval of forms Nos. 8 and 9 of section 5382 of the Code of 1907. Form 8 states "Here set out the covenant or agreement and the breach complained of." It does not say set out the breaches complained of, but the breach complained of. If there were more than one breach of the same covenant, it should be set out in another count. Form 9 states: "The defendant has failed to comply with the following provisions thereof." It does not indicate an approval of several breaches of one provision or covenant or stipulation in...