South & North Ala. Railroad Co. v. Schafner

South & North Ala. Railroad Co. v. Schafner. Action against Railroad Company, for Inf try to Stock. ■ 1. Sufficiency of complaint, in averment of time and place.- — -In an action against a railroad company, to recover damages for injuries to live stock caused by the defendant’s cars or locomotives, the complaint must, allege with reasonable certainty “ the time when and the place where the killing or injury occurred'” (Code, §1711); but, where the complaint does not show that the injury was caused by the defendant’s cars or locomotives, the statute does not apply,-and a complaint as at common law is sufficient. Appeal from the Circuit Court of Blount. Tried before the Hon. James Aiken. This action was brought by John Schafner against the appellant, a domestic corporation, and was commenced on the 17th February, 1885. In the original complaint, the plaintiff claimed “ one^hundred dollars as damages for negligently killing a valuable mule, the property of plaintiff, on the day of December, 1884and an amended complaint seems to have been filed, though'it is not mentioned in any minute-entry or judgment, alleging that the injury occurred ^on the 1st day of January, 1885.” The defendant demurred to the complaint, “ because it does not show the time when the alleged injury occurredand “ because it does not allege the place where the alleged injury occurred.” The court overruled the demurrer, and judgment on verdict was rendered for the plaiutiff. The overruling of the demurrer is the only matter assigned as error. Hamill & Lusk, for appellant. [MAJORITY — CLOPTON, J.] CLOPTON, J. The only assignment of error relates to the-overruling of a demurrer to the amended complaint. The assigned causes of demurrer are, that the complaint does not allege the time or place, when and where the injury occurred. In East Tenn., Va. & Ga. R. R. Co. v. Carloss, 77 Ala. 443, it was held, that where suit is instituted to recover for damages to live stock or cattle of any kind, by locomotives or railroad cars in this State, the complaint must, under the- statute, allege with reasonable certainty “ the time when, and the place where the killing or injury:occurred.” The ruling relates to a suit brought under the statute, which is, in terms, restricted to an injury caused by locomotives or railroad cars. If the killing or injury is occasioned in any manner other than by a locomotive or cars, the statute is not applicable, and a complaint as at common law, without conforming to the requirements 'of the statute as to the averments of time and place, will be sufficient. The complaint does not allege that the mule was killed by the locomotive or cars of the defendant, and such is not a necessary implication. The demurrer was properly overruled on the causes assigned. Whether the plaintiff is entitled to recover, under the complaint as framed, if the evidence disclosed that the mule was in fact killed by the locomotive or cars, is a question not raised by the record, and which we do not decide. It does not appear from the record in what manner, or by what means, the killing occurred. Affirmed,