Hackney v. Perry

• Decision Date: 28 November 1907
• Citation: 44 So. 1029,152 Ala. 626
• Parties: HACKNEY ET AL. v. PERRY.
• Court: Alabama Supreme Court

44 So. 1029

152 Ala. 626

HACKNEY ET AL. v. PERRY.

Supreme Court of Alabama

November 28, 1907

Appeal from City Court of Talladega; E. K. Miller, Judge.

Action by M. M. Perry against A. H. Hackney and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

The defendants named in the summons and complaint are A. H Hackney, Mary Hackney, and John L. Law, individually and as partners doing business under the firm name of Hackney Bros and R. B. Burns. The first and second counts are in trespass for the wrongful taking of one bale of cotton, weighing 500 pounds. The third and fourth counts are for the conversion of the cotton. The fifth count, as last amended, is as follows "Plaintiff claims of the defendant the sum of $65 damages, for that on, to wit, the 1st day of October, 1905 the plaintiff delivered to the defendant at Lincoln, Ala 1,560 pounds of seed cotton to be kept for hire, and defendants received said cotton and agreed to redeliver to plaintiff on demand. Plaintiff says that this cotton, although received by the defendants, has never been returned to her, although she has demanded the same before the bringing of this suit; and plaintiff avers the defendants negligently lost or misplaced or delivered the same to some unknown person, and thus failed and still fails on account of such negligence to deliver such cotton or the proceeds thereof, and on account of such negligent failure plaintiff was unable to obtain said cotton so delivered, and has lost the same, to her damage as set forth." Count 6: "Plaintiff claims of the defendants the sum of $65, in this: That heretofore, to wit, on the 1st day of October, 1905, plaintiff delivered to Hackney Bros., being all of the defendants except R. B. Burns, 1,560 pounds of seed cotton, of the value of $65, to be ginned for hire and redelivered, which the said defendants Hackney Bros. received as public ginners, and ginned the same, or claimed to have ginned the same, but wrongfully and negligently delivered the same to R. B. Burns, the other defendant here, who, with knowledge of such wrongful act and of plaintiff's ownership of said cotton, received the same, and has failed to redeliver the same to plaintiff, although demanded by plaintiff before the bringing of this suit, and on account of the negligence of said defendant the plaintiff has lost the said cotton so delivered, and has been damaged as aforesaid." Count 7: "Plaintiff claims of the defendant the sum of $65 as damages, in this: That on, to wit, the 1st day of October, 1905, she was the owner of 1,560 pounds of seed cotton, which she delivered to the defendants to be ginned and returned to her; that the said defendants received the cotton as public ginners, and agreed to gin the same and redeliver it to plaintiff; that said cotton was never redelivered to plaintiff, although demand has been made for the same before the bringing of this suit. But plaintiff avers that the said cotton was lost or destroyed, so that the same could not be redelivered to the plaintiff, through the negligence of the defendant; and on account of the defendant's negligence and failure to redeliver said cotton the plaintiff has lost said cotton and the proceeds thereof." Count 8: "Plaintiff claims of the defendant the sum of $65 damages, in this: That on, to wit, the 1st day of October, 1905, she was the owner of 1,560 pounds of seed cotton, which she delivered to the defendants to be ginned and returned to her for hire; that the said defendants received the same as public ginners, and agreed to gin the same and redeliver the same as public ginners to the plaintiff; that the said cotton was never redelivered, nor the lint cotton after it was ginned was never redelivered to the plaintiff, although demand has been made for the same before the bringing of this suit. And plaintiff avers that said cotton was lost or destroyed, or delivered to some person unknown to plaintiff, so that the same could not be redelivered to the plaintiff, through the negligence of the defendant." Count 9 is practically the same as count 8. Count 10: "Plaintiff claims of the defendant the sum of $65, in this: That the plaintiff delivered to the defendants composing the firm of Hackney Bros., being all of the defendants except R. B. Burns, at their gin at Lincoln, Ala., on, to wit, October 1, 1905, 1,560 pounds of seed cotton. Said defendants received the same to be ginned and redelivered to plaintiff; and plaintiff avers that they ginned the same and wrongfully delivered the cotton to R. B. Burns, the other defendant, who knew at the time of said delivery that the same belonged to the plaintiff and that the same was delivered without authority. Plaintiff avers that the same was negligently delivered and without authority of the plaintiff, and then the same was lost or destroyed by the negligence of the said Burns and by the delivery of the same, and by the negligence of the said Hackney Bros., and said R. B. Burns said cotton and the proceeds thereof was lost to the plaintiff." The eleventh count is practically the same as the fifth and seventh, except that it charges gross negligence.

Demurrers were assigned as follows: To the whole complaint, because there is an improper joinder of counts, in that the defendants are in one and the same suit sued on a cause of action ex contractu and a cause of action ex delicto; to the sixth count, because it sets up two separate and distinct causes of action in one count, based upon two separate and distinct wrongs; to the tenth count, for the same reason; to the eleventh count, because the allegations contained therein show only simple negligence, and do not show such gross negligence as would render the defendants liable as depositaries or gratuitous bailees. Defendant Burns filed a number of demurrers, which are not necessary to be set out.

The evidence tended to show that Hackney Bros. were public ginners, and that the plaintiff sent her 15 year old son with a load of seed cotton weighing 1,560 pounds, to their gin for the purpose of having the same ginned and baled, and that it was ginned and baled and delivered to the warehouse of R. B. Burns...