Kelly v. Louisville & N.R. Co.

• Decision Date: 06 February 1908
• Citation: 154 Ala. 573,45 So. 906
• Parties: KELLY v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

45 So. 906

154 Ala. 573

KELLY v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

February 6, 1908

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Personal injury action by Michael Kelly against the Louisville &amp Nashville Railroad Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

This is the second appeal in this case. The former appeal will be found reported in 148 Ala. 143, 41 So. 870. The action was for damages for personal injury. The amended complaint consisted of seven counts. The first and second counts were based upon the negligence of a person in the service or employment of defendant, whose name was unknown to plaintiff and who had charge or control of a locomotive upon a railway and negligently caused the cars upon which plaintiff was at work to be moved. Count 3 is the same as 1 and 2, except it is alleged that the person had charge or control of a train on a railway. Count 4 is upon the negligence of a person in the service or employment of the defendant, name unknown, who had superintendence intrusted to him, and whilst in the exercise of such superintendence negligently caused the cars upon which plaintiff was at work to be moved. Count 5 is the same as 1 and 2, except that it counts upon the willful or intentional negligence of such person. Count 6 is the same as 3, except that it counts upon the willful, wanton, or intentional negligence of such person. Count 7 is the same as count 4, except that it is for willful injury. Demurrers were interposed to each count of the complaint, and overruled. The defendant filed amended pleas 2 and 4, which purported to be answers to each count and complaint, severally and separately. These pleas were pleas of contributory negligence. Demurrers were interposed to them, among other things, on the grounds that there were no answers to the willful or wanton counts in the complaint, which demurrers were overruled. The third plea sets up a release, and in the plea sets out the contract, the substance of which is that Kelly for the sum of $300 released, compromised, adjusted, and settled the claim he had against the Louisville & Nashville Railroad Company for injuries received by him under circumstances which he claimed rendered the road liable to him in damages, and the plea avers that said sum was paid him and said release was signed, and that the injuries now sought to be recovered for are the identical injuries for which said settlement was made.

By way of answer to defendant's third plea setting up the release, plaintiff filed the following replication: "Replication 3. For further answer to defendant's third plea plaintiff avers that at the time the release alleged in said plea is averred to have been made by him he was in such a state of intoxication as to render him unconscious of any act committed by him while in such state, and incompetent to determine the contents of said release, and he did not know the contents of the same, nor has he any knowledge of ever having signed the same, or of having received any money from the defendant or its agents in settlement of said claim for damages. The plaintiff hereby tenders to defendant in open court the sum of $396, the amount claimed to have been paid the plaintiff, with interest, under the release alleged in the third plea of the defendant, and the defendant refuses to accept the same. Plaintiff makes oath that this replication is true." This replication is sworn to and subscribed before a notary public. The injuries are alleged to have occurred by July 19, 1903, and the suit was begun October 13, 1903, and the replication was filed May 10, 1907. Demurrers were interposed to it, setting up that the replication did not deny the execution of the release, and that it appeared therefrom that tender was not made before the bringing of the plaintiff's suit, and that it further appeared that the tender was not made until May 10, 1907, and that it seeks both to deny and to affirm the execution of the release. The date of the release is set forth in the plea as the 5th day of October, 1903.

W. A. Denson, for appellant.

Tillman, Grubb, Bradley & Morrow, for appellee.

ANDERSON J.

It appears that a demurrer was sustained to pleas 2 and 4, and which went to each count of the complaint. It also appears that said pleas were amended and refiled; but the amendment in no way confined the pleas to any particular counts, as they undertake, after amendment, as they did when originally filed, to answer each count of the complaint. The only amendment we find to the complaint was to add additional counts. There is nothing...