Hilburn v. McKinney

• Decision Date: 08 April 1920
• Docket Number: 8 Div. 250
• Citation: 204 Ala. 158,85 So. 496
• Parties: HILBURN v. McKINNEY.
• Court: Alabama Supreme Court

85 So. 496

204 Ala. 158

HILBURN v. McKINNEY.

8 Div. 250

Supreme Court of Alabama

April 8, 1920

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Ab. H. McKinney against James H. Hilburn for damages for loss of property while being ferried across a river. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

John A Lusk & Son and C.B. Kennamer, all of Guntersville, for appellant.

Street & Bradford, of Guntersville, for appellee.

McCLELLAN J.

The plaintiff (appellee) brought this action against the defendant (appellant) to recover damages resulting from the drowning of two mules and the loss of harness and a part of a wagon, while this property was being ferried across the Tennessee river at Gunter's Landing. Through special charges given at defendant's instance, the right of plaintiff to recover on either count 1 or 2 was denied, thus eliminating questions arising on the sufficiency vel non of those counts. The verdict for plaintiff is necessarily referable alone to count 3. That count reads:

"The plaintiff claims of defendant the further sum of $1,000 damages for that heretofore, to wit, on the 24th day of February, 1919, defendant was the operator of a public ferry for a reward paid by Marshall county across Tennessee river at Gunter's Landing, and on said date defendant did receive on his boat as such ferryman at the south bank of said river at said landing two mules, a wagon, and harness the property of plaintiff, and did undertake with plaintiff to carry the same across said river and deliver the same to plaintiff on the north bank of said river at said landing that said boat was unsafe in this, that there was no gate or barrier to said boat to prevent animals from stepping or falling overboard, and as the proximate consequence thereof said mules were drowned and said wagon and harness lost."

Code, §§ 3023, 3024, invest county governing bodies with authority and power to establish and maintain "free ferries," and confer on such bodies the "same powers" and impose on them "the same duties, when necessary or requisite, as to establishing, and maintaining *** ferries, *** as they have or perform with reference to the public roads," and invest them with the authority to require "ferries to be operated *** free," and authorize them to "construct, maintain, or improve" ferries, roads, etc., "by contract, by charter rights, or by the ordinary road hands and property subject to road duty." Code, § 3025, contemplates, among other things, the establishment and maintenance of ferries, where the stream lies along or is the dividing line between two counties. Section 3026 is designed to empower the county bodies to license persons, etc., to operate ferries, and provides for the regulation of the tolls charged by the persons so licensed. This statute (section 3026) is without application to or bearing upon the character of the public ferry described in count 3 or in the evidence in this record.

Having regard to the familiar rule that requires, on hearing on demurrer, the construction of the pleading against its pleader, a review of the action of the court in overruling the demurrer to count 3 is undertaken. When the averments of count 3, descriptive of the public ferry therein mentioned are read in the light of the stated statutes (sections 3023, 3024), the count must be construed as referring to the power and authority thereby conferred, and hence that the free public ferry in question was a free public ferry established and maintained by Marshall county in virtue of that...