Nashville, C. & St. L. Ry. v. Hill
| Decision Date | 05 April 1906 |
| Citation | 146 Ala. 240,40 So. 612 |
| Parties | NASHVILLE, C. & ST. L. RY. v. HILL. |
| Court | Alabama Supreme Court |
Apeal from Circuit Court, Marshall County; J. A. Bilbro, Judge.
"To be officially reported."
Action by Frances Hill against the Nashville, Chattanooga & St Louis Railway. From a judgment for plaintiff, defendant appeals. Affirmed.
Oscar R. Hundley, for appellant.
Robert N. Bell, for appellee.
The complaint originally contained seven counts, and count 8 was added by amendment. Each count claimed $1,990, a sum below the minimum jurisdiction of the Circuit Court of the United States. This sum is claimed in each count as damages resulting to the plaintiff, Frances Hill, the mother of the decedent, her minor son, from a wrongful act of the defendant causing his death. As the damnifying act alleged in each count was the wrongful killing of the decedent, and as we feel safe in asserting that he could not have been killed but once, it is obviously not "legally possible" for the plaintiff to recover for more than one injury. While it is true that theoretically each count of a complaint is considered and treated as the statement of a different cause of action, each as distinct as if it were a separate declaration (Maupay v. Holley, 3 Ala. 103; Robinson v. Drummond, 24 Ala. 174; Bryant v Southern Ry. Co., 137 Ala. 488, 34 So. 562), yet we know practically that the device of introducing numerous counts into a complaint is employed for the purpose of averting a variance between the pleadings and proof, when the plaintiff possesses and means to assert but a single right of action. Williams v. McKissack, 125 Ala. 544, 27 So. 922. It being plain on the face of the record that only the damages resulting to the plaintiff from the death of her son were sought to be or could be recovered, and these damages being fixed by each count of the complaint at a sum not within the jurisdiction of the federal court, it is legally certain that the case was not removable and was properly retained by the state court. Thompson v. Southern Ry. Co. (C. C.) 116 F. 890.
The case was tried on count 8, all the other counts having been withdrawn, and that count was a copy mutatis mutandis of a complaint which was held to be good in Marbury Lumber Co v. Westbrook, 121 Ala. 179, 25 So. 914. The suit was brought within a year from the happening of the accident, but count 8 was not filed until more than a year thereafter. The defendant pleaded the statute of limitations of one year upon which issue was joined, and, being appellant here, relies upon the case of Nashville, Chattanooga & St. Louis Ry. v. Parker, 123 Ala. 683, 693, 27 So. 323, as requiring the affirmative charge, which it requested; but since the submission of this cause that case, upon the point here involved, has been expressly overruled by this court, all the judges concurring. Rasco v. Jefferson (Ala.) 38 So. 247. The plea of the statute of limitations as authorized by the Code is peculiar. It contains merely an averment of a legal conclusion, to wit, that the cause of action "is barred by the statute of limitations of ______ years." Code 1896, p. 949, form 32. So that, if it appear under such a form of plea that the cause of action set forth in the complaint is not barred in the number of years stated, then the plea is not proven. If, on the other hand, the plea should aver, as it might do, that the accident happened more than _______ years before the bringing of the suit, or in some cases before the filing of an amendment to the complaint and issue were joined thereon, and the facts alleged were proven, the cause would come within the influence of numerous decisions, which hold that a proven plea will entitle a defendant to a verdict, although it would on demurrer have been adjudged to set up immaterial or insufficient matter, and hence to present no defense to the action. It was no doubt the overlooking of the difference between the Code form for a plea of the statute of limitations, and the form that is usual under...
To continue reading
Request your trial
-
Sloss-Sheffield Steel & Iron Co. v. Drane
...On the contrary, in the last case on this subject to which attention has been called, or which I have been able to find (Railway Co. v. Hill, 146 Ala. 240, 40 So. 612), same view of the measure of damages is announced, as will be seen by an extract from the opinion, in the following languag......
-
De Soto Coal Mining & Development Co. v. Hill
... ... charged out. They all charge that the plaintiff was ... "guilty" of contributory negligence, when, as ... matter of law, he was not and could not be "guilty" ... of contributory negligence as charged in said pleas ... Rasco v. Jefferson, 142 Ala. 705, ... [60 So. 586] Nashville R. R. Co. v. Hill, 146 Ala ... 420, 40 So. 612. Nor could there be any injury in charge 13, ... given at plaintiff's request, or any other charges given or ... refused which relate to contributory negligence ... There ... was no reversible error in giving plaintiff's written ... ...
-
Nickelson v. Nestles Milk Products Corporation
...that each count in a complaint is considered as the statement of a different cause of action.1 The case of Nashville, C. & St. L. Railway Company v. Hill, 146 Ala. 240, 40 So. 612, relied upon by appellant, is clearly distinguishable. It involved the death of the plaintiff's intestate, and,......
-
Fennell v. John Hancock Mutual Life Ins. Co.
...distinguishable under its own facts. We think the present case is governed by the principles enunciated in Nashville, C. & St. L. R. Co. v. Hill, 146 Ala. 240, 40 So. 612. In discussing the latter case, in our own case of Nickelson v. Nestles Milk Products Corporation, Inc., 5 Cir., 107 F.2......