Ex parte Bricken

• Decision Date: 17 June 1915
• Docket Number: 585
• Citation: 194 Ala. 148,69 So. 425
• Parties: Ex parte BRICKEN v. SIKES. BRICKEN
• Court: Alabama Supreme Court

69 So. 425

194 Ala. 148

Ex parte BRICKEN

BRICKEN v. SIKES.

No. 585

Supreme Court of Alabama

June 17, 1915

Certiorari to Court of Appeals.

Action by Frank B. Bricken against Short Sikes. There was judgment in the Court of Appeals (68 So. 801), affirming a judgment for defendant, and plaintiff petitions for certiorari. Writ denied.

Powell & Hamilton, of Greenville, for appellant.

W.H. Stoddard, of Luverne, and Ball & Samford, of Montgomery, for appellee.

MAYFIELD, J.

Appellant sued appellee in case to recover damages for the loss of a horse, buggy, and harness. Appellee was a livery stable keeper, and plaintiff's horse, buggy, and harness were kept by defendant for hire, and while being so kept they were destroyed by a fire which burned defendant's stable. The amended complaint contained five counts. Demurrer was sustained to counts 1, 4, and 5, and trial was had on counts 2 and 3.

It is insisted that there was error in sustaining demurrer to each of the counts 1, 4, and 5. If so, it affirmatively appears that it was without possible injury, as counts 2 and 3 each stated the same cause of action and alleged the same material facts that were alleged in each of counts 1, 4, and 5. While the verbiage is different, the material facts are the same in each. The plaintiff could prove anything under count 3 which he could prove under count 2, 4, or 5. If he could not prove count 3, he could not prove any one of the counts 1, 4, and 5. Counts 2 and 3 alleged negligence in the most general terms, which would have allowed proof of any particular negligence alleged in count 1, 4, or 5. In fact, the record shows that proof was offered and allowed as to each of these particular acts of negligence.

It would serve no good purpose to further review the rulings and decision of the Court of Appeals. We find no reversible error, and no question of law decided erroneously or contrary to the decisions of this court; and we cannot, on this application, review the action of the Court of Appeals as to its findings of facts. We have written as to rulings on demurrer, because appellant insists that the Court of Appeals declined to discuss the rulings. While we cannot concur in all that is said in the opinion, nor in all the reasons assigned for the rulings, we feel sure that the judgment appealed from was correctly affirmed.

Certiorari denied. All the Justices concur.