Interstate Lumber Co. v. Duke

• Decision Date: 05 June 1913
• Parties: INTERSTATE LUMBER CO. v. DUKE.
• Court: Alabama Supreme Court

62 So. 845

183 Ala. 484

INTERSTATE LUMBER CO. v. DUKE.

Supreme Court of Alabama

June 5, 1913

Appeal from Circuit Court, Lamar County; Bernard Harwood, Judge.

Action by G.T. Duke against the Interstate Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

As amended, count 3 is as follows: "Plaintiff claims of defendant the sum of $2,000 damages, for that heretofore, to wit, on or about the 1st day of November, 1910, the defendant's agents or servants, acting within the line of their duty, or within the scope of their authority, took and carried away or consumed the following property, to wit (here follows a description of certain personal property). And defendant's agents or servants took charge of and injured three oxen belonging to plaintiff by knocking the eyes of two oxen out and by crippling one ox in the shoulder, and defendant's agents or servants took charge of one ox belonging to plaintiff, injuring said ox, and defendant's servants or agents took charge of three wagons belonging to plaintiff, and damaged two wagons in this, one wheel was broken, and the tongue was broken out of one wagon, the property of plaintiff, and plaintiff avers that by reason of the defendant's agents or servants taking charge of said property as aforesaid, he has been damaged in the sum claimed."

The demurrers raise the question discussed in the opinion.

Plea 5 alleges that plaintiff had entered into a contract with the Interstate Lumber Company known as the logging contract, and that on or about the 1st day of November, 1910, while said contract was still in force, plaintiff, being in possession of the property described in the complaint, and using the same in carrying out his contract with defendant, became a fugitive from justice, leaving his property in the custody and control of one Sam Payne; that said Payne willingly and voluntarily delivered the possession and control of said property to certain persons in the employ of the Interstate Lumber Company, the said possession and control continuing only a short time, to wit, 10 days, and that during said time said property was used and managed in a careful and prudent way, and for the benefit of plaintiff, and upon his return possession thereof was surrendered to him, and when so surrendered it was in substantially the same condition as when he left it.

Plea 3 sets up that at the time of the wrongs complained of plaintiff was indebted in a large amount to defendant, to wit, $400, which was secured by a mortgage conveying substantially all of the property described in the complaint that plaintiff became a fugitive from justice, and abandoned said property, and such possession and control as was exercised over said property was for the benefit and protection of defendant, and was authorized under and by the terms of said mortgage, which said mortgage was executed to defendant by plaintiff, and is made an exhibit hereto.

J.C Milner, of Vernon, and J.M. Chilton, and John V. Smith, both of Montgomery, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellee.

McCLELLAN J.

Appellee instituted this action against the appellant. The substance of the wrong complained of was the taking and appropriation of, and entry upon, plaintiff's properties by the defendant's agents or servants. This action was sought to be justified under a mortgage executed by plaintiff and assigned to defendant; its contention being predicated of the alleged abandonment by plaintiff of the properties in question in consequence of his becoming a fugitive from justice.

The court erred in overruling the demurrer to count 3 as amended. It undertook, improperly, to join in one count trespass and case. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Sou. Ry. Co. v. McIntyre, 152 Ala. 223, 44 So. 624. In the record proper a demurrer appears as addressed to amended count 3 and the judgment entry shows a ruling thereon adverse to demurrant (appellant). The fact that the judgment entry bears at its head the date "August 28 1911," whereas the demurrer was filed the next calendar day, does not necessarily require the conclusion that the demurrer was filed after verdict or judgment. From the whole record proper it must be concluded that August 28, 1911, was the day and date on which the trial was begun, and that it was not completed to verdict before the amendment of count 3 was seasonably effected and the demurrer thereto presented and disposed of by the court.

The further amendment of the complaint by adding distinct counts, from amended count 3, to which the indicated demurrer was overruled, did not oblige the demurrant, in order to save for review the questions now under view, to reinterpose his demurrer to amended count 3. B.R.L. & P. Co. v. Fox, 174 Ala. 657, 56 So. 1013.

If plea 5 should be interpreted as intending to assert as a bar to the...