Southern Ry. Co. v. Rosenburg

• Decision Date: 18 April 1901
• Citation: 129 Ala. 287,30 So. 32
• Parties: SOUTHERN RY. CO. v. ROSENBERG.
• Court: Alabama Supreme Court

30 So. 32

129 Ala. 287

SOUTHERN RY. CO. v. ROSENBERG.

Supreme Court of Alabama

April 18, 1901

Appeal from circuit court, Hale county; John Moore, Judge.

This was an action brought by I. Rosenberg against the Southern Railway Company to recover damages for injury to certain household furniture of the plaintiff, which in the complaint is alleged to have been received by the defendant as a common carrier, to be delivered to the plaintiff at Marion, Ala for a reward, and that the defendant failed to so deliver said goods, except in a damaged condition. The defendant pleaded the general issue, and a special plea, in which he set up that the injury and damages for the recovery of which the suit is brought are barred by the statute of limitations of one year. To the special plea of the statute of limitations of one year the plaintiff demurred upon the ground that the suit is for the recovery of damages arising from the breach of a contract, and is not barred by the statute of limitations of one year. This demurrer was sustained. Thereupon the cause was tried upon issue joined on the plea of the general issue. The evidence introduced was without conflict, and proved the averments of the bill. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in his behalf. To the giving of this charge the defendant duly excepted. There were verdict and judgment for the plaintiff. The defendant appeals. Affirmed.

F. L Pettus and A. M. Tunstall, for appellant.

Thos E. Knight, for appellee.

DOWDELL J.

There are only two questions presented by the record. One is the action of the court in sustaining plaintiff's demurrer to the defendant's plea of the statute of limitations of one year. The other is the giving of the affirmative charge requested in writing by the plaintiff. This latter assignment of error is not insisted upon in argument. Moreover, the evidence, without any conflict, made out a prima facie case in favor of the plaintiff, which authorized the giving of the charge as requested.

The present action is one ex contractu, and the statute of limitations of one year presented no defense to the action. It was well brought within six years, and consequently there was no error in sustaining the demurrer to the defendant's plea. Railroad Co. v. Eichofer, 100 Ala. 224, 14 So. 56; McDaniel v. Johnson, 110 Ala 526, 19 So. 35; McCarthy v....