L. & N. R. R. Co. v. Ft. Wayne Electric Co., &C.

• Decision Date: 10 March 1900
• Parties: L. & N. R. R. CO. v. Ft. Wayne Electric Co., &c.
• Court: Kentucky Court of Appeals

108 Ky. 113

L. & N. R. R. CO. v. Ft. Wayne Electric Co., &c.

Court of Appeals of Kentucky.

March 10, 1900.

APPEAL FROM TODD CIRCUIT COURT.

JUDGMENT FOR THE PLAINTIFF v. L. & N. R. R. CO. AND SAID COMPANY APPEALS. AFFIRMED.

E. W. HINES AND BEN. T. PERKINS FOR APPELLANT.

C. P. CHENAULT, ATTORNEY FOR APPELLEE.

OPINION OF THE COURT BY JUDGE PAYNTER — AFFIRMING.

The appellee, in the first paragraph of its petition, avers that it sold and delivered to A. B. Camp & Co. a certain bill of goods of the value of more than $400. In the second paragraph it is averred that the goods were delivered to a common carrier, and by it to the Louisville & Nashville Railroad Company, which was to deliver them to the consignee, A. B. Camp & Co., but had, in violation of its contract, delivered them to one Hogan, who was not authorized to receive them. In the third paragraph it is averred that the company had either delivered the goods to A. B. Camp & Co., or had delivered them to some person not authorized to receive them; that it did not know which one of the allegations was true. By the first paragraph appellee sought to recover from A. B. Camp & Co., and by the second paragraph from the Louisville & Nashville Railroad Company.

The court erred in overruling motions by defendants to compel the plaintiff to elect which cause of action it would prosecute. To sustain the action of the court, counsel for appellee relies upon subsection 4, section 113, Civ. Code Prac., which reads as follows: "If, however, a party file a pleading which contains inconsistent statements, or statements inconsistent with those of a pleading previously filed by him in the action, he shall, upon or without motion, be required to elect which of them shall be stricken from his pleading. But a party may allege, alternatively, the existence of one or another fact, if he state that one of them is true, and that he does not know which of them is true." This subsection authorizes a party to allege, alternatively, the existence of one or another fact, if he state that one of them is true, and that he does not know which of them is true. If one state of fact exists which would make the defendant liable, or several defendants jointly liable, or if another state of fact exists which would make the defendant liable or several defendants jointly liable, each relating to the subject of the action, or, rather, the cause of action, then the pleader may make a statement in the alternative as to the existence of the facts. In the case at bar one state of fact alleged makes A. B. Camp & Co. responsible, while the other relieves them from liability, but makes the Louisville & Nashville Railroad Company liable. This provision of the Code was not intended to relieve a plaintiff of the necessity of naming definitely and certainly the party sought to be held liable, and from stating a cause of action against such party. This court had substantially the same question under consideration in Brown v. Railroad Co. (Ky.) 38 S. W. 862, wherein the court said: "The Code provides for averment of alternative facts. The facts thus averred in the alternative must be alleged of and concerning a definite party or parties. There is no effort in this pleading to allege alternative facts. The facts are definitely averred, but the party of whom they are alleged to be true is alleged in the alternative." The party did not allege alternatively the existence of one or another fact, but alleged alternatively the liability of one or another defendant. The reason why this case should not be reversed for the error indicated will hereafter be stated.

The facts with reference to the transaction are substantially these: The appellee was a corporation doing business in Indiana. Orders were received by it for certain goods purporting to have been sent by A. B. Camp & Co. The goods were shipped to A. B. Camp & Co. After they were transported by the Louisville & Nashville Railroad Company to the point to which they were shipped, A. B. Camp informed the agent of the railroad company that they had not ordered the goods, and would have nothing to do with them. The agent informed him that one Hogan had ordered them to be shipped to Madisonville,...