Louisville & N.R. Co. v. Bartee, 8 Div. 272

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, J.
• Citation: 86 So. 394,204 Ala. 539
• Docket Number: 8 Div. 272
• Decision Date: 21 October 1920
• Parties: LOUISVILLE & N.R. CO. v. BARTEE.

86 So. 394

204 Ala. 539

LOUISVILLE & N.R. CO.
v.
BARTEE.

8 Div. 272

Supreme Court of Alabama

October 21, 1920

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by Ellen Bartee against the Louisville & Nashville Railroad for damages for trespass. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

Eyster & Eyster, of Albany, for appellant.

Callahan & Harris, of Decatur, for appellee.

McCLELLAN, J.

The appellee sued the appellant for damages consequent upon an alleged trespass committed by appellant's agent, Elmer Hinds. The allegations of the second count (the substance of which will be reproduced in the report of the appeal) cast it in the category of counts held, in City Delivery Co. v. Henry, 139 Ala. 161, 166, 167, 34 So. 389, followed in Ex parte L. & N.R.R. Co., 203 Ala. 328, 83 So. 52, among others, to charge an act directly authorized by the corporation. There was no evidence supporting this effect of the allegations of the count. The doctrine of error without injury, illustrated in Oats v. Bullock, 136 Ala. 537, [86 So. 395] McNeil v. Munson S.S. Lines, 184 Ala. 420, 63 So. 992.

By mistake a consignment of freight was delivered to appellee; and, the error being discovered, an agent of the appellant, common carrier, went to the dwelling of appellee, and by and with her consent entered her premises for the purpose of removing the chattels, taking with him other servants to handle the goods. The appellee had paid 75 cents drayage in moving the goods from the depot to her dwelling. The payment of this sum she demanded of Hinds, as well as "$1 for her trouble" in the premises. Hinds wanted to "check up" the goods, and appellee, agreeing to that, also asserted all along her entire willingness to the removal of the goods if these charges were paid. Hinds expressed his willingness to pay the drayage charge, but protested against the payment of the other charge of $1, which on the trial the court correctly instructed the jury the appellee had no right to demand. After a part of the goods had been removed, appellee stopped the removal, placing herself in the doorway. Hinds later paid her both the charges, but she testified that at or during the suspension of the act of removing the goods he made offensive remarks to her with respect to the $1 charge, and said that he would or ought to have her arrested and went from her house to or towards the county jail in the neighborhood. That appellee had a right to the goods themselves is not claimed. There is no evidence that any tortious wrong was committed by Hinds or his laborers in connection with the entry of the premises, or while thereon or in the removal of the goods, other than may have attended or resulted from the language indicated.

As stated, the first count is in trespass. The appellee's consent to the entry and to the removal of the goods, to which she made no claim, upon the sole condition that the...