Alabama Great Southern Railroad v. Shahan

116 Ala. 302

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

COLEMAN, J.

The plaintiff’s action is .in case, and seeks to recover damages for injuries done to his stock of merchandise and his storehouse, caused by an overflow of rain-water. The complaint shows that the storehouse was situated near an embankment erected by the defendant railroad company, under which there was a culvert maintained for the passage of water in time of rain. The first count avers that “the defendant negligently allowed said culvert to remain in a condition which was and is insufficient for the free passage of water in time of rainfall,” &c. It does not clearly appear from the language employed whether the pleader intended to aver that the culvert was insufficienely constructed for the passage of water, or whether it had become insufficient for the passage of water by reason of extraneous causes; and which “were negligently allowed to remain.” Construing the pleadings most strongly against the pleader, we hold that the latter is the legal construction to be placed upon the averment.

The second count avers “that said culvert was and is insufficient for the passage of water during rainfalls ; * * * that defendant negligently allowed said culvert to fill partially from the washing of sand and loose rock in it, in time of rain, which further obstructed the free passage of water; that on the opposite side of the .mouth of said culvert, and (on the right of way of defendant) the defendant negligently allowed the drainage from said culvert to fill up with sand and loose rock and other obstacles which also obstructed the free flow of water from said culvert; * * * by reason of the said negligence of the defendant the water from said culvert and embankment, backed over and flooded the floor of plaintiff’s said store building and submerged, injured and destroyed,” etc. This count sufficiently avers the negligence of the defendant and the consequent injury to plaintiff to show a good cause of action.

We are of opinion, however, that each of these counts were subject to demurrer upon another ground. Each count avers injury resulting from an overflow in March and an overflow in August, 1891, and separate overflows in February, March and August, 1892. These were separate and distinct torts, inflicting separate and several injuries, each furnishing a separate and distinct cause of action, and to which there may be separate and different defenses. All these could be joined properly in one complaint, but should be presented in different .counts. It is not permissible to unite in one count several torts, constituting distinct and separate causes of action. The precise question was adjudicated in L. & N. R. R. Co. v. Cofer, 110 Ala. 491; Dusenberry v. R. R. Co., 94 Ala. 413; Offield v. Wabash, &c. R. R. Co., 22 Mo. App. 607; S. A. & M. Railway v. Buford, 106 Ala. 303. The grounds of demurrer to these counts,raised this objection and should have been sustained.

The other questions raised by the pleas of the defendant, and the demurrers thereto, and the rulings of the court upon the pleading, are believed to have been sufficiently considered in a case between the same parties, arising from a subsequent overflow, and adj udicated at the present term. — Shahan v. A. G. S. R. R. Co., 115 Ala. 181. It is unnecessary to repeat here what was said in that case.

' Reversed and remanded.

McClellan, J., dissenting.