Howland v. Wallace

• Decision Date: 29 January 1887
• Citation: 2 So. 96,81 Ala. 238
• Parties: HOWLAND v. WALLACE.
• Court: Alabama Supreme Court

2 So. 96

81 Ala. 238

HOWLAND v. WALLACE.

Supreme Court of Alabama

January 29, 1887

Appeal from city court of Birmingham.

Action against common carrier for failure to deliver goods.

This was an action by the appellee, William H. Wallace, against the appellant, S.D. Howland, doing business under the name of the "Birmingham Transfer Company," for damages for failure to deliver a trunk and contents alleged to have been received by appellant, as a common carrier, for delivery to the South & North Alabama Railroad Company at Birmingham Alabama. The complaint was according to form 13, Code 1876 p. 703. The appellant demurred to the complaint, but upon what grounds does not appear. The court overruled the demurrer, and the appellant excepted. The appellant then pleaded the general issue. After the evidence and argument were closed, the appellant moved the court to dismiss the case because the evidence developed the fact that appellee at the time the suit was brought, was under 21 years of age. The court overruled the motion, and the defendant excepted. Besides the evidence that appellee was a minor at the time of bringing suit, there was evidence tending to establish the allegations of the complaint.

The appellant asked the following charges in writing, which were separately refused by the court, and to the refusal of each of which appellant excepted: "(1) If the jury believe the evidence in this case, they must find for the defendant. (2) If the jury believe from the evidence that, at the time the suit was brought, the plaintiff was under twenty-one years of age, they must find for the defendant."

R H. Pearson, for appellant.

Hewitt, Walker & Porter, contra.

STONE C.J.

The complaint in this case is an exact copy of the form given in the Code for a suit against a common carrier for non-delivery of goods, and is sufficient. The demurrer to it was properly overruled. Form 13, Code 1876, p. 703.

The case was tried on the single defense of the general issue. That plea put in issue the material allegations of the complaint, and it did no more. Any defense special in its nature, or reaching beyond such mere denial, the statute requires to be specially pleaded. Code 1876, § 2988; Petty v. Dill, 53 Ala. 641; Trammell v. Hudmon, 56 Ala. 235; Burns v. Campbell, 71 Ala. 270, 294.

Infancy of plaintiff is not a defense in bar of the action. It must be pleaded in abatement, (1 Chit. Pl. 404, and note; 2 Chit....