Alabama Great Southern Railroad v. Clark , 136 Ala. 450 ( 1902 )

DOWDELL, J.

The sufficiency of a plea in law should be tested by demurrer and not by a motion to strike. Were it otherwise a motion would be made to take the place of a general demurrer, .which has been abolished in pleading by statute, (section 3303 of Code of 1896), and furthermore, such practice would leave no office to be performed by a special demurrer in pleading, as is contemplated in the above statute. . Section 3286 provides for a motion to strike, where the pleading is “unnecessarily prolix,” “irrelevant ” or “frivolousThe motion to strike in the present case was general, no ground being stated, nor as for that matter, is it necessary to state the grounds of a motion to strike, where motion is the proper remedy.. It cannot be said that the pleas which were stricken, were either unnecessarily prolix, or irrevelant, or frivolous. If the facts stated in these pleas were insufficient in law to constitute a valid defense to the action, it was the office of a special demurrer to point out the defect, and by so doing, inform the pleader wherein the insufficiency existed, thereby affording an opportunity of amendment,' if susceptible of amendment. The circuit court erred in sustaining the motion to strike. — Troy Fertilizer Co. v. State of Alabama, 134 Ala. 333; Brooks v. Continental Ins. Co., 125 Ala. 615; Murphy v. Farley, 124 Ala. 279; Williamson v. Mayer, 117 Ala. 253.

There was no error in the court’s ruling on the demurrer to the fourth and fifth counts, which were added by way of amendment to the complaint.. The first three grounds of the demurrer raise the question of the sufficiency of the averment as to negligence in these counts. This question has.been recently determined by this court and adversely to the contention of the appellant. — Marbury Lamber Co. v. L. & N. R. R. Co., 125 Ala. 237. The other grounds of demurrer are also untenable. The gist of the action is the negligent burning bv the defendant of the cotton, and whether the plaintiff’s title to the cotton is an equitable or legal title is unimportant, as in either case the right and cause of action would be the same. Of the cotton destroyed, sixty bales were purchased for the plaintiff by a third party with money furnished by the plaintiff for the purpose. The warehouse receipts for these sixty bales were issued in the name of such third party, and by him delivered to the plaintiff, but without indorsement. The legal title to this cotton vested in the plaintiff at the time his agent purchased the same and paid for it with- plaintiff’s money, and the storing of it in the warehouse and taking the receipts in the agent’s name did not operate a divestiture of the legal title out of plaintiff. — Weil v. Ponder, 127 Ala. 296. There was no merit in the objection to the admission of these receipts in evidence upon the theory that they showed the legal title to the cotton to be in another than the plaintiff. Nor was there any error in admitting in evidence the warehouse receipts, to which the name of the warehouseman was signed by another party. These receipts were signed and issued under the personal supervision of the warehouseman, and at the time the cotton represented by them was weighed and received.

It was clearly competent to.show the volume of sparks emitted by the defendant’s engine and the height- to Avhich such sparks were thrown, ivhile switching cars near to and by the warehouse, at or about the time the fire occurred. — A. G. S. R. R. Co. v. Johnson, 128 Ala. 283; Marbury Lumber Co. v. L. & N. R. R. Co., 125 Ala. 237.

The evidence as to other fires caused by the emission of sparks from this particular engine at the same place and so recently after the fire complained of, in the damaged cotton left on the ground, in connection with the evidence that other engines passed and repassed the same place, without setting the cotton on fire, was relevant and competent in rebuttal of the testimony of the defendant’s witnesses as to the condition in which they found the spark arrester - and other parts of the engine upon their examination after the fire.

There existed no contractual relations between the plaintiff and the defendant, and the degree of care in the operation of the engine in order to prevent the destruction of plaintiff’s property by tlie emission of sparks from the defendant’s engine, was that of an ordinarily prudent man. By this rule of law, and not by any rules of the defendant company regulating the conduct of its ¿•gents or employes in the operation of its engines, must the question of negligence be determined. By rules adopted for the government of its employes in the management of its internal business, the defendant company could not lessen the degree of care which-the law requires and it would be unreasonable to hold the defendant to a higher degree of care than the law imposes, because in its rules, in order to more thoroughly guard against accidents, it exacted an unusual or extraordinary degree of care of its employes. The rule of the company introduced in evidence over the objection of defendant, and which was made for the government of its employes required the exercise of a greater degree of care than that of an ordinarily prudent man — it required the exercise of every precaution. This evidence was not without prejudice to the defendant, and its admission Avas error.

Of the several written charges refused ‘to- the defendant, only one, the 32d, is insisted on in argument. This charge involves a proposition of laAV, relative to the sixty bales of cotton purchased by plaintiff’s agent, and Avhich Ave have already considered, and it follows from what we have said, that the court properly refused the charge.

For the errors pointed out the judgment of the circuit court will be reversed and the cause remanded.