Brock v. Louisville & N.R. Co.

• Decision Date: 15 April 1897
• Citation: 114 Ala. 431,21 So. 994
• Parties: BROCK v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

21 So. 994

114 Ala. 431

BROCK v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

April 15, 1897

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

This was an action brought by the appellant, John I. Brock against the Louisville & Nashville Railroad Company, to recover damages for failure of the defendant to deliver to the plaintiff certain goods which were received by the defendant as a common carrier for transportation to the plaintiff.

It is unnecessary to make a detailed statement of the facts, since the only question reviewed on the present appeal is sufficiently shown in the opinion.

There was judgment for the defendant, from which the plaintiff appeals, and assigns the rendition thereof as error. Reversed.

S. T Wert, for appellant.

Thos G. Jones and Harris & Eyster, for appellee.

HARALSON J.

In construing sections 2743, 2744, and 2745 of the Code, we have held that, "whenever there is a special finding by the court, whether performed in the exercise of its discretion or upon written request of the parties or either of them, on appeal it is the duty of the court to examine and determine whether the facts are sufficient to support the judgment." Sayre v. Weil, 94 Ala. 470, 10 So. 546.

In other cases we have held, that "a special verdict must find directly and affirmatively every fact in issue essential to the right of recovery, or judgment upon it cannot be pronounced; it cannot be aided by intendment or by reference to extrinsic facts." Betancourt v. Eberlin, 71 Ala. 465; Bibb v. Hall, 101 Ala. 87, 14 So. 98.

The cause was tried by the court without a jury. It is stated in the abstract: "There being no jury demanded by either the appellant or appellee, both appellant and appellee requested in writing a special finding on the facts by the court."

At the conclusion of the bill of exceptions, which purports to set out all the evidence in the case, the statement appears "The foregoing is the substance of all the evidence offered in the cause, and the court, having been requested to find on the facts, stated in substance the evidence offered before the court, and found on the facts, and entered judgment for the defendant, and which action of the court the plaintiff assigns as error." The correctness of this statement is questioned in the counter abstract, which quotes that part of the bill of exceptions, and refers to the page of the transcript for verification,...