Tombigbee Valley Railroad v. Wilks

60 So. 559, 6 Ala. App. 473, 1912 Ala. App. LEXIS 98

• Court: Alabama Court of Appeals
• Decided: November 28, 1912
• Status: Published

Opinion

WALKER, P. J.-

The complaint in each of its counts claimed damages for an alleged injury to a cow, the property of the plaintiff. The evidence offered was as to the injury to or killing of an ox belonging to the plaintiff. The word “cow” describes only a female bovine animal, and is not broad enough in its meaning to include an ox, which is a male of that species of animal. —Webster’s Dictionary; Marsh v. State, 3 Ala. App. 80, 57 South. 387; Brigham v. Bush, 33 Barb. (N. Y.) 596; State v. McMinn, 34 Ark. 160; 2 Words and Phrases, 1706. An allegation of injury to one thing cannot be supported by evidence as to an injury to another and different thing. There was such a variance between the allegations and the proof in a material matter of description (Johnson v. Whitfield & Pinckard, 124 Ala. 508, 27 South. 406, 82 m. St. Rep. 196) as to render improper the giving by the court of the general affirmative charge in his behalf, requested by the plaintiff.

Reversed and remanded.