Alabama Great Southern R. Co. v. Sheffield

• Decision Date: 10 April 1924
• Docket Number: 7 Div. 468.
• Citation: 211 Ala. 250,100 So. 125
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. SHEFFIELD
• Court: Alabama Supreme Court

100 So. 125

211 Ala. 250

ALABAMA GREAT SOUTHERN R. CO. v. SHEFFIELD

7 Div. 468.

Supreme Court of Alabama

April 10, 1924

Rehearing Denied May 15, 1924.

Appeal from Circuit Court, St. Clair County; Woodson J. Martin Judge.

Action for damages by J. P. Sheffield against the Alabama Great Southern Railroad Company, for the negligent killing of a dog. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Goodhue & Lusk, of Gadsden, for appellant.

Conley Merchant, of Ashville, for appellee.

THOMAS J.

The trial was had on counts 3 and 4, to which demurrers were interposed and overruled.

In Western Ry. of Ala. v. Turner, 170 Ala. 643, 54 So 527, the observation is contained that good pleading would require "a more specific designation of the place of killing the mule than is set out in counts 2 and 3 of the complaint." The averments of place in that case were (count 1) "about 1 3/4 miles east of Chehaw, Ala., a station on defendant's line of said railway in said county," etc., and, in counts 2 and 3, "in Macon county, Ala." The sixth ground of demurrer in the instant case challenged the sufficiency of counts 3 and 4 for that said counts fail "to aver or show at what point or what place the said dog was killed." The averment of the place of the injury is insufficiently stated in each of said counts-"on or about, to wit, the 22d day of April, 1922 defendant was operating a railroad in the northern judicial division of St. Clair county, Ala., through and near Caldwell in said county and defendant's agents, servants, or employees, while acting in the line and scope of their employment as such agents servants, or employees, negligently ran a train over, against, or upon plaintiff's dog," etc. The defendant was not properly acquainted of the place of injury, so as to prepare the defense, as was pointed out in the Turner Case, supra. Weller & Co. v. Camp, 169 Ala. 275, 278, 52 So. 929, 28 L. R. A. (N. S.) 1106. The ground of demurrer in Tennessee (A. & G. R. Co. v Daniel, 200 Ala. 600, 76 So. 958), was not the same as that contained in the sixth ground of instant demurrer. So of South. Ry. Co. v. Harris, 207 Ala. 534, 93 So. 470. The reports of the Daniel and Harris Cases, supra, fail to disclose the grounds of demurrer assigned. We have re-examined the records, and find the respective counts questioned were not on the ground of an indefinite statement of the place of the injury. The demurrer should have been sustained to counts 3 and 4.

The testimony on the question of value was sufficient to submit the damages to the jury. Code 1907, § 3960; Hill Gro. Co v. Caldwell (Ala. Sup.) 99 So. 354; Obear-Nestor Glass Co. v. Mobile Drug Co., 208 Ala. 618, 620, 95...