Louisville & N.R. Co. v. Farmers' Produce Co.

• Citation: 85 So. 578,17 Ala.App. 388
• Decision Date: 18 November 1919
• Docket Number: 6 Div. 568
• Court: Alabama Court of Appeals
• Parties: LOUISVILLE & N.R. CO. v. FARMERS' PRODUCE CO.

85 So. 578

17 Ala.App. 388

LOUISVILLE & N.R. CO. v. FARMERS' PRODUCE CO.

6 Div. 568

Court of Appeals of Alabama

November 18, 1919

Rehearing Denied April 6, 1920

Appeal from Circuit Court, Jefferson County; Charles W. Ferguson Judge.

Action by the Farmers' Produce Company against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Bradley & Morrow and John S. Stone, all of Birmingham, for appellant.

Frank E. Spain, of Birmingham, for appellee.

SAMFORD J.

Count 1 of the complaint conforms substantially to the form of complaint prescribed by the Code for an action against a common carrier for injury to goods intrusted to it for transportation (Code 1907, § 5382, form 15); and by mandate of the statute must be deemed sufficient. Louisville &amp N.R. Co. v. Allgood, 113 Ala. 163, 20 So. 986. It was not incumbent on plaintiff by allegation to negative the fact of a latent defect in the goods shipped. If the injury to the potatoes was the result of some inherent quality in them, causing the injury, through no fault on the part of the defendant, that fact was available to defendant by way of defense. Atlantic Coast Line R. Co. v. Dothan Insurance Agency, 16 Ala.App. 623, 80 So. 627.

The second count of the complaint claims damages for the injury to the potatoes, and also claims a statutory penalty as provided by section 5517 of the Code of 1907. Conceding that the allegations of the complaint are sufficient to state the claim, it is perfectly clear that the count set up two separate and distinct causes of action based upon entirely different breaches of duty. First. Failing to handle the potatoes with due diligence and to the failure to pay the damage within 60 days upon proper presentation of the claim. The demurrer to this count should have been sustained. Sloss-Sheffield S. & I. Co. v. Mitchell, 167 Ala. 226-231, 52 So. 69.

We are further of the opinion that this count is subject to the additional ground of demurrer, in that it does not appear that the shipper, consignee, or other person entitled to demand and receive the goods made out an itemized statement of the property injured, setting forth the kind of articles, the number thereof, and the extent of damages, swore to the same, and delivered same to defendant within 60 days after loss, as is provided in section 5515 of the Code of 1907. When suit is brought to recover a sum as a penalty imposed by statute, the plaintiff by his complaint must bring himself within the letter of the statute. All such statutes are strictly construed. Greek-American Produce Co. v. Illinois Cent. R. Co., 4 Ala.App. 377-382, 58 So. 994. The plaintiff by count 2 does not do this, and for this further reason the count is demurrable.

The bill of exceptions in this case contains many more repetitions of what had already been stated. Entire pages are duplicated. It contains page after page of copies of papers having no apparent connection with the case. In addition to this, long lists of interrogatories propounded to the adverse party, followed in succeeding pages with categorical answers many of which are entirely immaterial, are set out in haec verba, making it necessary for the court to wade through a mass of immaterial matter in an effort to understand the merits of the case sought to be presented. The court...