6 Div. 44. | Ala. | Oct 28, 1920
After remandment of this case on the former appeal, the plaintiff amended his complaint by striking therefrom the Alabama Great Southern Railroad Company as a party defendant, and withdrawing all counts except the third and fourth — detinue and trover respectively. The trial resulted in a verdict and judgment for the plaintiff against the appellant on the detinue count.
If it should be conceded that the third count claimed elements of damages not recoverable in an action of detinue, this would not render the count demurrable. West. Union Tel. Co. v. Garthright,
The measure of recovery in an action of detinue is the specific property or its alternative value, together with the value of the use or hire thereof during the period of wrongful detention, without interest or damages for deterioration in value from ordinary wear and tear. Ex parte Allen,
However, remuneration for inconvenience and annoyance to the plaintiff as the result of being deprived of his property is not recoverable. This is afforded in the damages awarded for the use or hire of the property during the period of unlawful detention; and charges refused to the defendant, made the basis of assignments of error 26, 49, and 53, should have been given.
If the shipment miscarried as the result of the plaintiff's fault or negligence in giving shipping directions, or in erroneously marking the packages, the plaintiff would be liable for the extra freight charges for carrying the goods from Jones to Johns, and should not recover. On the other hand, if the shipping directions given by the plaintiff to the initial carrier was to ship the goods from Cuba to Johns, the initial carrier, the Alabama Great Southern Railroad Company, in accepting the shipment acted as the agent of the defendant; and if the shipment miscarried as the result of the negligence of the initial carrier, or its servants, the plaintiff having prepaid the freight charges from Cuba to Johns, he was under no legal duty to pay the extra charges incurred in carrying the goods from Jones to Johns, and was entitled to recover the goods after demand for the delivery of the goods to him with damages for the wrongful detention. James v. A. G. S. R. R. Co.,
All matters of evidence developed on the trial, pertinent or material to the defendant's defense, were admissible under the general issue (Wellden v. Witt,
The liability, if it was liability at all, of the Alabama Great Southern Railroad Company for negligence in respect to carrying the goods, was separate and distinct from the liability charged against the defendant in the counts of the complaint, on which the case proceeded to judgment; and the settlement of that liability did not relieve the appellant from liability for a wrongful withholding of the goods or their wrongful conversion after they came into the possession of the defendant. James v. A. G. S. R. R. Co., supra.
We deem what we have said a sufficient guide for another trial, and we refrain from further discussion of the assignments of error.
For the errors pointed out, the judgment of the circuit court will be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. *606