Hinkle v. Railway Express Agency

Citation6 So.2d 417,242 Ala. 374
Decision Date22 January 1942
Docket Number6 Div. 711.
PartiesHINKLE v. RAILWAY EXPRESS AGENCY.
CourtSupreme Court of Alabama

Rehearing Denied March 5, 1942.

H. H. Kinney and Joe V. Knight, both of Cullman and S. A. Lynne, of Decatur, for appellant.

St John & St. John, of Cullman, for appellee.

LIVINGSTON, Justice.

The complaint, consisting of four counts, is based upon alleged violations of the provisions of sections 301, 302 and 304 of the Alabama Agricultural Code of 1927, Code 1940, Title 2 sections 461, 462 and 464.

Demurrers were sustained to each count of the complaint, and the plaintiff took a voluntary non-suit. Plaintiff filed motion for a new trial, which was overruled by the trial court, and to which ruling plaintiff reserved an exception. The questions presented for review do not call for a discussion of the propriety of this procedure.

For an understanding of the questions presented on this appeal we set forth count one of the complaint:

"Plaintiff claims of the defendant Three Thousand ($3,000.00) Dollars damages for that on or about to-wit: May 1, 1939, the defendant, Railway Express Agency, a corporation, was then a common carrier or agency for a common carrier, doing business in the states of Florida and Alabama, and as such common carrier accepted a shipment of sweet potato plants or sweet potato vine cuttings from a point in the state of Florida, to be shipped to the plaintiff, Herron Hinkle, at Hanceville Alabama, Cullman County, Alabama, which said sweet potato plants or sweet potato vine cuttings and area or locality in the state of Florida from which said sweet potato plants or sweet potato vine cuttings were shipped had been quarantined because of a dangerous insect, pest or disease. Plaintiff avers that said sweet potato plants or sweet potato vine cuttings were shipped by the defendant from said area or locality in Florida and were delivered to him in Cullman County, Alabama, by the defendant's agents, servants or employees, while acting within the line and scope of their employment, and that said sweet potato plants or sweet potato vine cuttings were shipped from a quarantined area in the state of Florida, into the state of Alabama, which said fact or facts were known to the defendant or should have been known to the defendant, in violation of section 304 of the Agricultural Code of Alabama [Code 1940, Tit. 2, § 464]; that said sweet potato plants or sweet potato vine cuttings were delivered to plaintiff and carried by him to his farm about eight miles west of Cullman; that later plaintiff inspected said plants or vine cuttings and found that the same were infected with a dangerous insect, pest or disease, and that immediately upon this discovery, the plaintiff reported this fact to the Agricultural Department of the state of Alabama, and inspectors of the said Agricultural Department of the State examined said plants or vine cuttings and found them to be infected with a dangerous insect, pest or disease. That said sweet potato plants or sweet potato vine cuttings were condemned, confiscated and ordered destroyed by the Agricultural Department of the state of Alabama, and the lands of the plaintiff, Herron Hinkle, were quarantined for the year 1939, and as a result plaintiff was caused to lose large sums of money, was caused to lose his potato crop, was prevented from using or selling any plants grown on his land, was prevented from using his potato house for storage or any other purpose during the year 1939, was put to great expense, trouble and labor in destroying said plants, was ordered to destroy other potato plants and beds on his said property, was caused to lose a long time from his work, was caused to lose a great number of orders which he had received and did receive for potato plants, his reputation as a plant grower and operator of a plant farm was injured and impaired, was greatly humiliated and embarrassed and was caused to suffer great mental pain and anguish.

"Plaintiff further avers that all of his said damages were the direct and proximate consequence of defendant's accepting said shipment of sweet potato plants or sweet potato vine cuttings, which said plants did not bear the official tag issued by the Commissioner or the inspection tag of the Federal Horticultural Board, and delivering such plants or vine cuttings to the plaintiff in Cullman County, Alabama, in violation of section 304 of the Agricultural Code of the state of Alabama, hence this suit."

Count 2, in its material aspects, sets up substantially the same facts, but alleges a violation of section 302 of the Alabama Agricultural Code of 1927, Code of 1940, Title 2, section 462, in that the plants or vine cuttings did not bear the official tag issued by the commissioner or the inspection tag of the Federal Horticultural Board. However, the count appears to be based on an alleged violation of section 304 of the Agricultural Code, supra. Count 3 likewise alleges substantially the same facts set out in count 1, and alleges a violation of sections 301, 302 and 304 of the Alabama Agricultural Code of 1927, Code of 1940, Title 2, sections 461, 462 and 464. Count 4 contains substantially the same allegations of fact as count 1, and alleges a violation of sections 301 and 302 of the Alabama Agricultural Code supra.

Apt grounds of demurrer raise two principal questions for review.

The Act of Congress of August 20, 1912, as amended by the Act of March 4, 1917, 7 U.S.C.A. § 161, provides that the Secretary of Agriculture is authorized and directed to quarantine any state, territory or district of the United States, or any portion thereof, when he shall determine that such quarantine is necessary to prevent the spread of a dangerous plant disease or insect infestation, new to or not theretofore widely prevalent or distributed within and throughout the United States; and, further, that it shall be unlawful to move or allow to be moved any class of nursery stock or any other class of plants, fruits, vegetables, roots, bulbs, seeds or other plant products, or any class of stone or quarry products or any other article of any character whatsoever, capable of carrying any dangerous plant disease or insect infestation from any quarantined state or territory or district of the United States, or quarantined portion thereof, into or through any other state, territory or district, in manner or method or under conditions other than those prescribed by the Secretary of Agriculture.

On April 13, 1926, the Congress further amended said Act as follows: "Provided further, That until the Secretary of Agriculture shall have made a determination that such a quarantine is necessary and has duly established the same with reference to any dangerous plant disease or insect infestation, as hereinabove provided, nothing in this chapter shall be construed to prevent any State, Territory, Insular Possession, or District from promulgating, enacting, and enforcing any quarantine, prohibiting or restricting the transportation of any class of nursery stock, plant, fruit, seed, or other product or article subject to the restrictions of this section, into or through such State, Territory, District, or portion thereof, from any other State, Territory, District, or portion thereof, when it shall be found, by the State, Territory, or District promulgating or enacting the same, that such dangerous plant disease or insect infestation exists in such other State, Territory, District, or portion thereof:

"Provided further, That the Secretary of...

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