Louisville & Nashville Railroad v. Cofer , 110 Ala. 491 ( 1895 )

HEAD, J.

At common law counts for distinct and independent torts, of the same nature and upon all which the same judgment was to be given, could be joined in separate counts, in the same action. — 1 Chit. P1.T99, 200. Section 2072 of the Code provides, that all actions on contracts, express or implied, for the payment of money, whether under seal or not, may be united in the same action. This statute was not intended to affect the rule above stated. At common law there were contracts for the payment of money, actions upon which could not be joined. Thus, assumpsit, covenant, debt, or account could not be joined with each other. — 1 Chit. PL 201. The statute was intended to abrogate that rule, and permit actions upon all contracts for the payment of money to be joined. The demurrer to the complaint for mis-joinder of counts was properly overruled. In respect to costs, when there are distinct causes of action laid in different counts, the parties may be protected by having the court to instruct the jury, in the event they find for the plaintiff upon any less than all the causes of action declared on, to specify in the verdict the counts upon 'which the finding is based. This done, the court may award to the defendant the costs relating to those causes upon which the plaintiff failed to recover. — 1 Chit. PI. 412.

The first count of the complaint claims of the defendant a gross sum, as damages for negligently killing three animals by three several and distinct acts, committed at different times. There was a demurrer to this count for misjoinder of causes of action in the same count, which was overruled, and that ruling is assigned as error. Under the influence of the decission of this court, in Dusenberry v. H. A. & B. R. R. Co., 94 Ala. 413, we hold that this system of practice does not change the rule of the common law so as to authorize the joinder, in one count, of several distinct and independent torts. The court, therefore, erred in overruling the demurrer to the first count.

Reversed and remanded.