Louisville & N.R. Co. v. Fitzpatrick

• Decision Date: 02 April 1901
• Citation: 129 Ala. 322,29 So. 859
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. FITZPATRICK.

29 So. 859

129 Ala. 322

LOUISVILLE & N. R. CO. v. FITZPATRICK.

Supreme Court of Alabama

April 2, 1901

Appeal from circuit court, Elmore county; N. D. Denson, Judge.

Action by R. A. Fitzpatrick against the Louisville & Nashville Railroad Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

The complaint contained but one count, which, after alleging that the defendant was operating a railroad in the county of Elmore on June 15, 1898, and that a certain engine and train of cars of the defendant were being run on said road, and were under the control and management of the defendant's employés, further averred as follows: That said engine and train of cars "were so negligently managed and controlled by said employés or agents of defendant that the said engine or the said train of cars were so violently run against a certain dog of plaintiff as to kill it, to the damage of plaintiff in the said sum of one hundred dollars. Hence this suit." To this complaint the defendant demurred upon the following grounds: "(1) Because said complaint claims damages only for the negligent conduct of the defendant; (2) because, under the facts stated in said complaint, defendant is not liable to the plaintiff for the negligent management or control of said train by its agents (3) because said complaint fails to allege that the injuries to plaintiff's dog were inflicted by the willful act of this defendant, or its agents or servants; (4) because the plaintiff has not such property in said dog as would authorize a recovery for the negligent killing thereof." The cause was submitted upon these demurrers under an agreement between the parties, which provides as follows "That, in the event the court shall overrule said demurrers, the defendant will decline to plead further, and that, in such event, the court may take the value of the dog alleged to have been killed by defendant's locomotive and train, as set out in the complaint, at the sum therein named. It is further agreed that, should the court sustain the demurrer, the plaintiff will decline to plead further, and judgment may be entered for the defendant. It is expressly understood, however, that this agreement shall not have the effect to prevent or stop either of the parties from appealing from the judgment of said court, nor shall it be considered as any admission of liability by the defendant nor a waiver by the plaintiff of any right of action he may have." The court overruled the demurrers, and, in accordance with said agreement, rendered judgment in favor of the plaintiff assessing his damages at $100.

Thos G. Jones, for appellant.

Gordon Macdonald, for appellee.

SHARPE J.

By the common law, ownership of a dog carried with it property rights sufficient to afford the owner a civil remedy for injuries to the animal, but which was not a subject of larceny. 4 Bl. Comm. 235. This court has followed the common-law doctrine entire as to actions for damages in Parker v....