58 So. 677 | Ala. Ct. App. | 1912
The complaint seeks damages for the failure of the defendant (appellant) to deliver, Avithin a reasonable time, certain articles of household furniture delivered to it, as a comman carrier, in the due course by the plaintiff at Abbeville, a station on its line of railroad in the State of Alabama, for transportation to Arlington, in the State of Georgia, a station on the line of the Central of Georgia Raihvay Company, a connecting carrier of the defendant.
The defendant filed a plea of the general issue and three special pleas, and demurrers Avere sustained to special pleas numbered 2 and 4. The court’s action in sustaining demurrers to these pleas is assigned as error.
By plea No. 2, the defendant set up a clause in the contract of shipment undertaking to exempt it from lia
The plea was bad and could not have been amended, so as to set up a good defense without an entire departure from the original defense made; and, even if, as contended by appellant, the demurrers to this plea did not sufficiently point out the defects, the court’s action in sustaining general or inapt demurrers is not prejudical error that will cause a reversal—Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 48 South. 510, 132 Am. St. Rep. 20; Ryall v. Allen, 143 Ala. 222, 38 South. 851; Schuler v. Fisher, 167 Ala. 184, 52 South. 390; Staples v. Steed, 167 Ala. 241, 52 South. 545. Ann. Cas. 1912A, 480.
Special plea No. 4, to which demurrer were sustained, set up a stipulation in the contract of shipment, whereby the defendant Avas not to be liable for loss, damage, or delay, unless the plaintiff presented a claim in Avriting to the carrier at the point of shipment or delivery within four months after delivery, or reasonable time for delivery. The plea averred a failure to make claim within that time. If the time fixed Avithin which
Reversed and remanded.