Tallassee Falls Mfg. Co. v. Western Ry. of Alabama

• Decision Date: 20 December 1900
• Citation: 128 Ala. 167,29 So. 203
• Parties: TALLASSEE FALLS MFG. CO. v. WESTERN RY. OF ALABAMA.
• Court: Alabama Supreme Court

29 So. 203

128 Ala. 167

TALLASSEE FALLS MFG. CO. v. WESTERN RY. OF ALABAMA.

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Montgomery county; J. C. Richardson Judge.

Action by the Tallassee Falls Manufacturing Company, for the use of insurance companies, against the Western Railway of Alabama for cotton destroyed by fire. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The first count of the complaint, which was the one upon which the trial was had, claimed damages for failure to deliver certain cotton which the defendant received at Montgomery as a common carrier, and agreed, for a reward, to deliver it to Cowles Station, and is in substantially the Code form. This count was subsequently amended by adding thereto the allegation that the money sued for, when collected, would be the property of the insurance companies for whose use the suit was brought, and who prior to the bringing of the suit had paid plaintiff for said loss, and that thereby the insurance companies had been subrogated to the rights of the plaintiff against the defendant. There were many pleas interposed by the defendant, demurrers to which were overruled. The plaintiff filed several replications demurrers to which were sustained. Under the opinion on the present appeal, it is unnecessary to set out these rulings upon the pleadings, inasmuch as they are not presented for review. The judgment entry in reference to the rulings upon the pleadings was as follows: "Thereupon defendant, by counsel, demurs to the amended complaint. Being argued by counsel and understood by the court, said demurrer be, and is hereby, overruled. Plaintiff, by counsel, moves to strike pleas 2 and 7. Being argued by counsel and understood by the court, is sustained, and defendant excepts. Demurrer to pleas 3, 4, 5, 6, and 9; said demurrer is overruled, and demurrer to replications to fourth plea sustained by the court, and demurrer to replication to third plea sustained by the court and demurrer to replication to fifth plea court sustains, and demurrer to replication to sixth plea is sustained by the court. Motion to strike replication to pleas 3, 5, 4, and 6 being argued by counsel and understood by the court, said motion is overruled. Thereupon plaintiff, by counsel, is allowed by the court to plead over, which is done. Demurrer to replication 2 to plea 3, filed June 8, 1899. Court sustains said demurrer. Demurrer to replication 2, filed June 8, 1899, to plea 4, sustained by the court. Demurrer to replication 2, filed June 8, 1899, to plea 5, sustained by the court. Demurrer to replication 2, filed June 8, 1899, to plea 6, the court sustains; and plaintiff, by counsel, is allowed by the court to plead over, which is done. Demurrer to amended replication 2, filed June 8, 1899, to third plea, being argued by counsel and understood by the court, is sustained." The material facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The plaintiff offered to introduce evidence to prove the existence of a local custom or particular usage which existed between the defendant and the plaintiff, having regard to the removal of cotton at Cowles Station, and under which the plaintiff was allowed as long a time as was necessary to remove cotton shipped to Cowles Station. Upon the introduction of all the evidence, the court, at the request of the defendant, gave the general affirmative charge in its behalf, to the giving of which charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Watts, Troy & Caffey, for appellant.

Geo. P. Harrison, for appellee.

SHARPE J.

The recitals found in this record relating to demurrers to pleadings are not such as show or constitute a judgment either sustaining or overruling either of the demurrers, and under the rule established by several decisions of this court upon the effect of such recitals the appellant can take nothing by assignments of error based upon them. Mercantile Co. v. O'Rear, 112 Ala. 247, 20 So. 583; McKissick v. Witz (Ala.) 25 So. 21; Blankenship v. Owens (Ala.) 27 So. 974; Improvement Co. v. Du Bose (Ala.) 28 So. 380; Hereford v. Combs, Id. 582.

The issue joined upon the somewhat meager ninth plea presents substantially the merits of the case. The complaint declares alone upon the contract of carriage. The ninth plea sets up "that the cotton sued for in said complaint was destroyed by fire after the defendant's duty and liability as a common carrier had terminated, and while the goods had been left in its custody as a warehouseman." To this there was no special replication. The uncontradicted evidence shows that 437 bales of cotton were on the 9th of October, 1895, delivered to defendant for shipment to plaintiff at Cowles Station; that they all reached that station not later than the 12th of that month; that defendant received notice of arrival, and paid at least a part of the freight, not later than the 12th,...