Illinois Cent. R. Co. v. J.R. Kilgore & Son

• Decision Date: 10 November 1914
• Docket Number: 485
• Parties: ILLINOIS CENT. R. CO. v. J.R. KILGORE & SON.
• Court: Alabama Court of Appeals

67 So. 707

12 Ala.App. 358

ILLINOIS CENT. R. CO. v. J.R. KILGORE & SON.

No. 485

Court of Appeals of Alabama

November 10, 1914

Rehearing Denied Jan. 21, 1915

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by J.R. Kilgore & Son against the Illinois Central Railroad Company, for damages for failure to deliver and for delay in delivering certain live stock. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Davis &amp Fite, of Jasper, and Percy, Benners & Burr, of Birmingham for appellant.

Bankhead & Bankhead, of Jasper, for appellee.

THOMAS J.

At common law a partnership or firm is not regarded as a legal entity apart from its members; and, as it is a general rule that actions can only be brought by and against persons natural or artificial--a partnership being neither--it has been almost universally held that all actions and suits involving partnership claims or liabilities must be brought by or against the persons individually who compose the firm. 15 Ency.Pl. & Pr. 839. This rule, however, has received some modification in this jurisdiction. As to suits against partners, it is here provided by statute that such suits may be brought, either against the partnership in its common name, even omitting the names of the individuals composing it, or against the individuals themselves--any one or more of them (Code, § 2506)--and as to suits by partners, it has been established and settled by the decisions of our Supreme Court that such suits may be maintained, either in the partnership name, provided the names of the individuals composing it are set out, or in the name of the individuals themselves. Planters' & Merchants' Bank v. Laucheimer & Sons, 102 Ala. 457, 14 So. 776; Simmons v. Titche Bros., 102 Ala. 319, 14 So. 786; Thompson v. Roberts, 115 Ala. 697, 22 So. 1001; Foreman v. Weil Bros., 98 Ala. 497, 12 So. 815; Thompkins v. Levy & Bro., 87 Ala. 263, 6 So. 346, 13 Am.St.Rep. 31; Moore v. Martin & Hoyt, 124 Ala. 291, 27 So. 252; Lister v. Vowell et al., 122 Ala. 267, 25 So. 564.

In the present case, the plaintiff in the court below, who is the appelle here, was described in the complaint as "J.R. Kilgore & Son, a copartnership composed of J.R. Kilgore and John N. Kilgore." Although the suit is therefore, as contended, one by the partnership (Kilgore & Son v. Shannon, 6 Ala.App. 537, 60 So. 522), yet, setting out, as the complaint does, the names of the individuals composing it, such complaint was not subject to the demurrer aimed at it, to the effect that a partnership is without capacity to sue. The court consequently committed no error in overruling the demurrer. Authorities supra.

To the complaint, which was against the defendant as a common carrier for failure to deliver (in some counts) and for delay in delivering (in other counts) certain cattle shipped by plaintiff over defendant's railroad from Jasper, Ala., to East St. Louis, Ill., the defendant, in addition to the general issue, filed three special pleas, numbered 3, 4, and 5, respectively, setting up in each a provision in the bill of lading to the effect that no claim for loss or damage to the stock should be valid unless made in writing, verified by affidavit, and filed within 10 days after the stock was removed from the cars, and averring in each of such pleas that no such claim had been filed. In addition to these averments common to them all, plea 4 contained the distinguishing additional averment that the loss and injury complained of was unknown to defendant, its servants or agents, and plea 5, the distinguishing additional averment that "the loss of and injury to plaintiff's stock, as set up in the complaint, was peculiarly within the knowledge of the plaintiff." The demurrers to these pleas, the sustaining of which is assigned as error, and which will be set out in the report of the case, were predicated upon section 4297 of the Code, which has been upheld by our Supreme Court--whose decision has been subsequently followed by this court--as applicable to both intra and inter state shipments. N.C. & St. L. Ry. v. Hinds 178 Ala. 657, 59 So. 669; N.C. & St. L. Ry. Co. v. Hinds, 5 Ala.App. 596, 59 So. 670; So. Ex. Co. v. Ruth & Sons, 5 Ala.App. 644, 59 So. 538; Northern Ala. Ry. Co. v. Bidgood, 5 Ala.App. 658, 59 So. 680; N.C. & St. L. Ry. Co. v. Hinds, 9 Ala.App. 534, 60 So. 409; Western Union Tel. Co. v. Brazier, 10 Ala.App. 308, 65 So. 95.

As to whether that decision is, as insisted by appellant's counsel, in conflict with the federal statutes regulating interstate commerce and the decisions of the United States Supreme Court construing them is a question we are foreclosed from considering, since the statutes of this state creating this court make the decisions of our Supreme Court binding on us. Nor does the suggestion of appellant's counsel that we certify the case to our Supreme Court to ascertain, in advance of any present ruling by us, if that court still desires to adhere to or to now overrule its previous decision meet with approval. The necessary effect of the operation of the statute, making their decisions binding on us, is to create the presumption--conclusive so far as may concern any action on the part of this court--that that court does desire to adhere to its former decision. We are therefore without warrant or authority to entertain any doubt or disagreement, so far as regards our official action, as to the correctness of that decision, or to in any wise bring it in question. Section 10, Gen. Act, approved March 9, 1911 (Acts 1911, p. 95).

The statute permits this court to certify to the Supreme Court any question for decision, when upon it, the judges of this court are unable to reach a unanimous conclusion. Section 2, Gen. Act, approved March 9, 1911. But, as to the standing decisions of that court, the statute, propria vigore, makes our conclusion unanimous as to their correctness (section 10, supra); and we would be acting in the teeth of that statute were we to question such a decision by certifying to the Supreme Court that we had disagreed as to its correctness, and by calling on them to say again whether it was correct or not. They would be justified in doing so, and should ignore such a certification. If appellant desires to bring that decision again under review by our Supreme Court, the law affords him an adequate remedy and method by certiorari.

Under that decision and those cited as based upon it, it is clear as is practically conceded, that the trial court committed no error in sustaining the demurrer as to the special pleas numbered 3 and 4 mentioned, but, it is insisted, the court erred in sustaining it as to plea numbered 5, because that plea averred, as pointed out, that the loss and injury to plaintiff's cattle, as alleged, was a fact "peculiarly within the knowledge of the plaintiff" which allegation, it is contended, brought the plea within the saving provision of the said section 4297 of the Code. We cannot so agree, as we are of opinion that injury done to cattle as the result of the negligence of the carrier in transporting them, which is of such a character as to cause their death in transit and consequent failure to deliver by the carrier, as is alleged in the complaint, is not and cannot, in the nature of things, be such a fact as is "peculiarly within the knowledge of the shipper," but is a fact equally open to the knowledge of the carrier. The plea is therefore repugnant and inconsistent, in that it alleges a fact, or conclusion rather, at variance with the facts it confesses, to wit, it alleges a fact to be peculiarly within the knowledge of the plaintiff, when the complaint, which such plea confesses and seeks to avoid, shows, as a necessary inference from the matters set up in it, it to have been a fact equally open to the knowledge and observation of the defendant. If so, then such plea does not show that the fact was peculiarly within the knowledge of the plaintiff, and consequently fails to bring the clause (in the bill of lading) relied on for defense within the saving provisions of said section 4297 of the Code; but such plea merely alleges at most, when properly construed, a conclusion repugnant to the facts which it confessed, and the court, in passing on the sufficiency of the plea, was authorized in ignoring such a conclusion, and in looking only to the facts which it confessed and upon which such conclusion was predicated. These showed that the loss of the cattle by death while on defendant's train was not a fact peculiarly...