Southern Express Co. v. Ashford

126 Ala. 591

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

HARALSON, J.

1. The rulings of the court be-1o:av on demurrers to the third and fourth counts of the complaint, are sliOAvn in the judgment entry to be: “defendant’s demurrer is by tbe court heard, considered and overruled,” and the demurrer to the second and third pleas is disposed of in the same language, except that the demurrer is stated as having been 'sustained. These rulings on the demurrer to the counts- and pleas do not show a judgment thereon in either instance. The case is jnesented, therefore, as if no demurrers Avere interposed to the counts or pleas. This disposes of the first and second assignments of error.—St. Louis P. Co. v. McPeters, 124 Ala. 451; McDonald v. Ala. M. R. Co., 123 Ala. 227; Mercantile Co. v. O’Rear, 112 Ala. 427.

The first count was AvithdraAvn -by plaintiff, and the cause Avas tried on the second count, and on the third and fourth counts as amended.

2. The first plea was that of the general issue, denying each and every allegation of the complaint. The complaint alleged that the defendant as a common carrier, received the dog to be transported to a named point. It is insisted that the proof failed to show that defendant aauis a common carrier, as alleged in the complaint, and under -the general issue, denying each and eArery allegation of the complaint, the general charge, as requested by defendant should have been given. It may be 'admitted that it was incumbent on the plaintiff to prove this allegation of his complaint, susceptible of establishment by evidence, that defendant undertook to carry for persons generally, and held itself out as ready to engage in the transportation of goods for a reward, as a business, and not as a casual occupation.—2 Ur. Ev. §§ 210, 211; 3 Brick. Dig. 116, §§ 1, 6. The evidence shows that the -company received the dog at Birmingham to be shipped to Hickory Valley, Tennessee, for tlie reward of $3, which was the regular charge. The fact that the company had established regular charges for -such freight, tends to show that they were in the transportation business. A witness, Oargile, testified that it was customary at Decatur to water and feed all live stock carried by express, that had to lay over there any length of time. It was also shown that the company was provided with offices and express messengers along the line, who received, attended to and forwarded its freights. While no witness swore in terms that the express company .was a common carrier, and held itself out .as such, 'and was engaged in the transportation of-freight for pay, as a business, it cannot he said that the evidence introduced -did not tend to establish that fact. The jury, by fair inference therefrom,' might reasonably have been satisfied that such was the case. There was other evidence also tending to support the averments of each of the counts in the complaint, in which state of proof the general charge could not have been properly given, as requested, for defendant on either of the counts.

The facts set up in the second and third pleas were not established, and there was no effort to do -so. No question is raised concerning them, and they are allowed to pass from consideration.

Refused charge 6 for defendant postulates that plaintiff must -show that the defendant failed to give to the dog food, water and exercise, or, any food, water and exercise, whereas, the count referred to—the 3d,— charge's that defendant failed to give the dog proper care and -attention in the matter of food, -water and exercise. If it he conceded that the burden was on plaintiff to prove the negligence of defendant averred, he would have been bound only to show the failure to give proper, or an adequate supply of these things, and the defendant would have been liable, if it failed to give such adequate supply, although it might have shown that it gave some food, water and exercise. The proof tended to show that defendant gave some food and water, but no exercise, and it tended also to show that it failed to give proper attention in these respects.

The 13th charge is subject to the same vices. Charge 12 asserts that plaintiff must prove, under the 1th count, that defendant failed to give the dog fond and water and exercise,—that is, that there was an entire failure to give food, water and exercise, whereas, plaintiff, under this count, was bound only to show a failure to give an adequate supply of 'food and ‘water. The failure to give the dog proper exercise on the trip is not counted on in this count.

Charge 15 was property refused. The matters there: in hypothesized did nót constitute a defense. The removal of the dog from the custody of the agent at Hickory Valley, in his absence, by the consignee, and his receipting for it in good condition and without objection, was not a conclusive defense against the plaintiff under any issue in the cause. It does not appear' that the consignee had, at tire time referred to, taken the dog from the crate and examined her. The further fact hypothesized, that after such receipt the dog developed disease from which she died, if true, would not imply that the supposed developed disease did not originate from seeds of disease sown from the negligence of defendant in the transportation of the dog, which the evidence abundantly tended to show. Indeed, the evidence shows without conflict that 'When delivered, and taken from the crate, the dog, within a short time afterwards, was in an injured and unhealthy condition; and there is an entire failure of evidence to show that the disease developed after the consignee receipted for her.

No error was shown in the rulings of the court below, •and its judgment is ‘affirmed.

Affirmed.