Tennessee River Nav. Co. v. Walls, 8 Div. 252

CourtSupreme Court of Alabama
Citation204 Ala. 285,85 So. 711
Docket Number8 Div. 252
Decision Date20 May 1920

85 So. 711

204 Ala. 285


8 Div. 252

Supreme Court of Alabama

May 20, 1920

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Seaborn J. Walls against the Tennessee River Navigation Company for damages for failure to transport ties. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Street & Bradford, of Guntersville, for appellant.

John A. Lusk & Son, of Guntersville, for appellee.


Counts 1 and 2 sought recovery of damages for failure to deliver 2,000 cross-ties received by defendant as a common carrier, to be delivered to the plaintiff at [85 So. 712.] Gunter's Landing on the Tennessee river for reward. There was no proof to support these counts, and no insistence seems to have been made upon them in the court below, although the affirmative charge was not asked as to these counts separately. For the purposes of this appeal they may therefore be laid out of view.

As we construe counts 3, 4, and 5, they seek recovery as for breach of a special contract entered into by the defendant company with the plaintiff to transport, by its steamboats and barges, cross-ties placed by the plaintiff at the customary landing and stopping place on the Tennessee river to Gunter's Landing, also on said river. These counts, after alleging notice to the defendant's agents or servants that the cross-ties were so placed, allege such agents thereupon agreed with the plaintiff to take up and load the cross-ties so placed upon said steamboats and barges, and to transport the same to Gunter's Landing on the Tennessee river for an agreed compensation, and that the defendant negligently failed and refused to take up and transport said cross-ties and negligently permitted them to be washed away by flood.

There were specific grounds of demurrer addressed to these counts pointing out that the contract is alleged to have been made with the agents of the defendant and fails to aver that the agents mentioned had any authority in the premises. As previously stated, we construe these counts as seeking recovery upon a breach of a special contract, and not upon a breach of the common-law or statutory duty of the defendant as a common carrier. The demurrer was well taken, and should have been sustained. Cooper v. Slaughter, 175 Ala. 211, 57 So. 477; Addington v. Am. Casting Co., 186 Ala. 92, 64 So....

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3 cases
  • Tennessee River Nav. Co. v. Walls, 8 Div. 558.
    • United States
    • Supreme Court of Alabama
    • April 26, 1923
    ...rulings as to count 11. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158. This is the third appeal. Tennessee River Nav. Co. v. Walls, 204 Ala. 285, 85 So. 711; Id., 18 Ala. App. 305, 92 So. 202. On last appeal counts 10 and 12 were before the Court of Appeals, and held not subject to th......
  • Mathis v. Holman, 4 Div. 887
    • United States
    • Supreme Court of Alabama
    • June 17, 1920
    ...to the bill, complainant appeals. Reversed and rendered. Chapman & Lewis, of Dothan, for appellant. J.E. Acker, of Ozark, for appellee. [85 So. 711.] SOMERVILLE, J. Appellant filed his bill in equity to enforce a mechanic's lien for labor and materials furnished in repairing an automobile. ......
  • Tennessee River Nav. Co. v. Walls, 8 Div. 865.
    • United States
    • Alabama Court of Appeals
    • November 15, 1921
    ...& Son, of Guntersville, for appellee. [18 Ala.App. 307] SAMFORD, J. This is the second appeal in this case. Tenn. R. Nav. Co. v. Walls, 204 Ala. 285, 85 So. 711. On that appeal the Supreme Court held that the action was based on a special contract, and as such the complaint was subject to d......

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