Louisville & N.R. Co. v. Cofer

• Decision Date: 11 June 1895
• Citation: 110 Ala. 491,18 So. 110
• Parties: LOUISVILLE & N. R. CO. v. COFER.
• Court: Alabama Supreme Court

18 So. 110

110 Ala. 491

LOUISVILLE & N. R. CO. v. COFER.

Supreme Court of Alabama

June 11, 1895

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by W. T. L. Cofer against the Louisville & Nashville Railroad Company to recover damages for the negligent killing of cattle. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

In the first count of the complaint plaintiff claims of defendant $125 "for the killing of one cow, one steer, and one heifer, the property of plaintiff, which cow was killed on or about the 7th day of October, 1891, and said steer was killed on or about the _____ day of September, 1891, and said heifer was killed on or about the _____ day of May, 1891," all of which cattle were alleged to have been killed by defendant's negligence in the running of its trains, etc. The complaint contains four other counts, each of which counts separately upon the killing of each of the cattle. Defendant demurred to the complaint on the ground that plaintiff seeks therein to join several distinct trespasses in the same action. It also demurred to the first count on the ground that several distinct causes of action are joined in one and the same count. The demurrer to the complaint as a whole was overruled, except as to the fourth count, to which it was sustained; and the demurrer to the first count of the complaint was overruled. To each of these rulings defendant separately excepted, and assigns as error the court's rulings on the demurrers interposed to the complaint as a whole, and to the first count thereof.

J. M Falkner and Geo. H. Parker, for appellant.

W. T L. Cofer, in pro. per.

HEAD J.

At common law, counts for distinct and independent torts of the same nature, and upon all which the same judgment was to be given, could be joined in separate counts in the same action. 1 Chit. Pl. 199, 200. Section 2672 of the Code provides that all actions on contracts, express or implied, for the payment of money, whether under seal or not, may be united in the same action. This statute was not intended to affect the rule above stated. At common law there were contracts for the payment of money, actions upon which could not be joined. Thus, assumpsit, covenant, debt, or account could not be joined with each other. 1 Chit. Pl. 201. The statute was intended to abrogate that rule, and permit actions upon all contracts for the payment of money to be joined. The demur...