Tuscaloosa Belt Ry. Co. v. Maxwell Bros.

• Decision Date: 09 February 1911
• Citation: 171 Ala. 318,54 So. 620
• Parties: TUSCALOOSA BELT RY. CO. v. MAXWELL BROS.
• Court: Alabama Supreme Court

54 So. 620

171 Ala. 318

TUSCALOOSA BELT RY. CO. v. MAXWELL BROS.

Supreme Court of Alabama

February 9, 1911

Appeal from Tuscaloosa County Court; H. B. Foster, Judge.

Action by Maxwell Bros. against the Tuscaloosa Belt Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Henry Fitts and A. B. McEachin, Jr., for appellant.

Oliver Verner & Rice, for appellees.

SOMERVILLE J.

This is a tort action, brought by the plaintiffs against the defendant, to recover damages on account of one of defendant's locomotives being allowed to run upon a pair of mules and a wagon, the property of the plaintiffs resulting in the killing of one of the mules and the so injuring of the other that it had to be killed, and also in the damaging of the wagon. The complaint contains two counts the gravamen of the first being simple negligence, whilst the second counts on willful or wanton injury. There was verdict with judgment thereon, for the plaintiffs, from which judgment the defendant has appealed.

There is no bill of exceptions, and the only errors assigned relate to rulings of the court upon the pleadings. Numerous pleas of contributory negligence, to both counts, were filed, as well as the general issue to each count. The court sustained demurrers to all the pleas addressed to the second count, except the plea of the general issue; and sustained demurrers to some of the pleas addressed to the first count. It has been many times held that the general issue is the only proper plea to a count for willful or wanton injury; and so the appellant, with becoming propriety, has not assigned for error any ruling of the court sustaining demurrers to its special pleas addressed to the second count.

As to the joinder of issue, the judgment entry recites: "And issue being now joined on plea 1, and also on replications 1, 2, and 3, to pleas Nos. 4, 7, 8, 9, and 11, to the first count, and issue being also joined on the second count of the complaint and plea No. 1 thereto, etc." The verdict of the jury follows in this form: "We, the jury, find the issues in favor of the plaintiffs and assess their damages at $400.00." The appellees contend that, notwithstanding the court may have committed error in its rulings with respect to some of the special pleas, yet in the form in which the case is presented by the record, and especially in view of the form of the verdict of the jury, such errors must be held to be without prejudice to the appellant. This contention goes upon the theory that the truth of the second count, and the falsity of the plea thereto, being established by the verdict of the jury, the plaintiffs were entitled to judgment, irrespective of the first count and of the pleas thereto; and that the judgment is not reversible for any rulings of the court with regard to pleas addressed to the first count. While the record shows a demurrer to the second count of the complaint, and shows that the demurrer was overruled, yet the ruling of the court in this respect is not assigned as error. There was no demurrer to the plea of the general issue to the second count. It was in good form and issue was joined upon it.

Brantley's Case, 27 Ala. 44, 46, was a scire facias on a forfeited recognizance against Brantley and his sureties, of whom the latter only were served with process. The sureties appeared and filed seven special pleas in answer to the scire facias. Demurrer was sustained to the first, sixth, and seventh, and overruled as to all others. Trial was had on issues joined on the second, third, and fourth pleas, and the jury returned a verdict in form as follows: "We, the jury, find the issues in favor of the defendants." Rice, J., speaking for the court, said: "In the present case, the jury found all the issues (including the issues on the second plea) for the defendants. That plea was not demurred to, and no error has been committed by the court below in regard to it. That plea is good, and the proof of its truth absolutely destroys the plaintiff's action. As the court below committed no error in relation to that plea, we are not authorized to deprive the defendants of the benefit of the verdict establishing its truth, merely because the court may have committed errors in its rulings as to other and independent pleas. If there was error in the overruling of the demurrers to the third and fourth pleas, such error had no connection with and no influence upon the second plea, and in no way contributed to the proof of the truth of that plea. We do not here allow the defendants any benefit from their third and fourth pleas. We consider those two pleas as in effect stricken out of the record. The verdict ascertaining the truth of the second plea is sufficient, per se, to sustain the judgment for the defendants. If the verdict had been general for the defendants, and had not shown affirmatively that the jury found 'the issues in favor of the defendants,' it is possible we might have held that we would not interpret the verdict as finding all the issues for the defendants; and...