Louisville & Nashville Railroad v. Brinkerhoff & Co.

119 Ala. 528 | Ala. | 1898

COLEMAN, J.

The suit was brought by the appellee. The complaint contains three counts, the first and second being against the defendant as a common carrier, and the third is against the defendant generally, and is in trover for a conversion of the goods. The fifth ground of demurrer to the complaint is, “For that said complaint contains counts for the recovery of money on a breach of contract, and for conversion.” The second count pursues the form given in the Code for an action on a bill of lading of a common carrier, Code 1896, p. 940, and is ex contracta,. The third count follows the form given in the Code for a conversion of chattels. Clearly there is a misjoinder of counts. The demurrer raised the question precisely, and should have been sustained. Looking at the first count as a whole, we hold that it is a count ex contractu. It avers that the defendant as a common carrier received the lime at Calera to be transported and delivered to plaintiff at Bessemer, for a reward, and that it failed to transport and deliver the same to plaintiff at Bessemer. Both contract and breach is here averred, and a complete cause of action ex contractu-. The fact that the count at its close avers, that “the defendant so negligently, carelessly and improperly behaved and conducted itself in that behalf” that the lime was lost, cannot operate to change the gravamen of the complaint, which clearly appears to be a breach of contract. This error necessarily works a reversal of the case. We cannot anticipate whether plaintiff will so amend his complaint as to proceed ex contractu or in tort, and we will not undertake to pass upon questions which may never arise again.

It is not improper to say, that the evidence shows that the lime was permitted to remain with the defendant for some two weeks after notice to the plaintiff of its arrival at Bessemer. ' Whether the defendant’s liability as a common carrier continued for so long a time, might present a question for consideration.

As to the character of the action under the first count, see McDaniel v. Johnston, 110 Ala. 526; Baldwin v. Kansas City, 111 Ala. 515; A. G. S. R. Co. v. Eichofer, 100 Ala. 224; McCarthy v. Railroad Co., 102 Ala. 193. On the other suggestion, see So. Ex. Co. v. Holland, 109 Ala. 362; L. & N. R. R. Co. v. Touart, 97 Ala. 514, authorities cited.

Reversed and remanded.