Opinion
6 Div. 444.
November 14, 1933. Rehearing Denied November 28, 1933. Affirmed on Mandate March 6, 1934.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
Action for damages by Street Lowery against the Louisville Nashville Railroad Company. From a judgment of nonsuit, plaintiff appeals.
Reversed and the cause remanded.
Certiorari granted by Supreme Court in Lowery v. Louisville N. R. Co., 228 Ala. 137, 153 So. 467.
Count 3 of the complaint is as follows:
"The plaintiff claims of the defendant the sum of One Hundred ($100.00) dollars as damages for this, that the defendant so negligently operated one of its passenger trains on the main line of said company between Birmingham, Alabama, and Cullman, Alabama, at the public crossing on said railroad, near Bangor, Alabama, and known as the Bangor Crossing on or about the _____ day of February, 1932, that it so ran said train over or against plaintiff's Chevrolet truck, known as the Bob Reid Truck, and destroyed said truck, all to plaintiff's damage in the sum aforesaid."
Defendant's plea 3 is as follows:
"3. For further answer to the complaint and each separate count thereof, defendant says that plaintiff merely held a mortgage on the truck mentioned in the complaint, and was not the owner thereof at the time of the alleged injury; that said truck was in the possession and under the control of the mortgagor, R. W. Reid, at said time and that after the alleged injury of said truck by train of defendant, the defendant settled with said Reid and paid him for the damages done to said truck, as it had the legal right to do, and defendant pleads said settlement with Reid as a bar to any and all rights of recovery on the part of the plaintiff for said damages to the automobile truck aforesaid. Wherefore, defendant says that plaintiff should not recover in this case for any alleged injury to said truck."
To plea three plaintiff filed the following demurrers:
"1. Because it fails to deny or to confess and avoid the averments of the complaint.
"2. Because from all appearing in said plea the defendant settled with the said Reid only for his interest in said truck.
"3. Because the said Reid as mortgagor of said truck had no right as such to settle and waive the defendant of liability to the plaintiff for the said injuries to plaintiff's interest in said truck.
"4. Because the interest of the plaintiff as mortgagee gave him a right to maintain this action for a wrongful destruction or injury to said truck.
"5. Because from all appearing in said plea the said plaintiff was the holder of the legal title to said truck, and the said Reid was only a bailee of said truck at the time complained of, and said Reid settled with defendant for only Reid's interest in said truck and had no right to settle for plaintiff's interest therein.
"6. From all appearing the plaintiff's said mortgage was past due and unpaid."
J. T. Johnson, of Oneonta, for appellant.
Count 2 met all requirements necessary to make it a good count. 1 C.J. 935. Plea 3 fails to measure up to the requirements as an answer to counts 1 and 3, and was subject to plaintiff's demurrer. Gambill v. Fuqua, 148 Ala. 448, 42 So. 735; Cox v. Columbus W. R. Co., 91 Ala. 392, 8 So. 824; Jordan v. Emanuel, 167 Ala. 176, 52 So. 310; Woody v. Berry, 190 Ala. 308, 67 So. 450. The plea avers only that plaintiff held a mortgage on the truck. From aught appearing, plaintiff's mortgage was past due. If so, plaintiff was entitled to immediate possession. Black v. Slocumb Mule Co., 8 Ala. App. 440, 62 So. 308; Harmon v. Dothan Nat. Bank, 186 Ala. 360, 64 So. 621. If the mortgage was past due, Reid was holding the truck at the time as bailee of plaintiff. Wilkes v. So. Ry., 85 S.C. 346, 67 S.E. 292, 137 Am. St. Rep. 890, 21 Ann. Cas. 79; Abercrombie v. Bradford, 16 Ala. 560; 6 C. J. 1166; Logan v. Wabash R. Co., 43 Mo. App. 71. The bailor may maintain an action for injury to his general property in the chattel bailed. Code 1923, § 5670; So. R. Co. v. Chambless, 10 Ala. App. 326, 65 So. 417. The word "trespass" as used in the statute includes any tort committed by defendant as to the property. 26 R.C.L. 930; 38 Cyc. 994; Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1 Ann. Cas. 870.
Dortch, Allen Dortch, of Gadsden, P. A. Nash, of Oneonta, Steiner, Crum Weil, of Montgomery, and Charles H. Eyster, of Decatur, for appellee.
A count claiming damages growing out of a collision between an automobile and a train, which fails to show the time and place of the alleged collision, is subject to demurrer. A. G. S. Co. v. Sheffield, 211 Ala. 250, 100 So. 125; L. N. R. Co. v. Whittey, 213 Ala. 525, 105 Ala. 661; Bugg v. Green, 215 Ala. 343, 110 So. 718; Western Ry. Co. v. Turner, 170 Ala. 643, 54 So. 527. Either the bailor or bailee of a chattel, without the aid of any statute, may maintain an action for conversion or negligent injury to the chattel by a third person. A mortgagor in possession, even after condition broken, may maintain such action. Recovery by either the bailor or bailee ousts the other of his right of action. Turner C. Co. v. Glover, 101 Ala. 289, 13 So. 478; Stephens v. Head, 138 Ala. 455, 35 So. 505; First Nat. Bank v. Harden, 17 Ala. App. 165, 82 So. 655; 11 C.J. 598; 6 C.J. 1156; Wilkes v. So. Ry., 85 S.C. 346, 67 S.E. 292, 137 Am. St. Rep. 890, 21 Ann. Cas. 79; Montgomery G. L. Co. v. Montgomery E. R. Co., 86 Ala. 372, 5 So. 735; Crescent, etc., Co. v. Hines, 7 Ala. App. 609, 61 So. 9; Birmingham S. R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339; 38 A.L.R. 1340, note; Bradley v. Wood, 207 Ala. 602, 93 So. 534; L. N. R. Co. v. Duncan, 16 Ala. App. 520, 79 So. 513; Lacey v. Great Northern R. Co., 70 Mont. 346, 225 P. 808, 38 A.L.R. 1331. Such right is barred whether payment was compelled by judicial proceeding or not. First Nat. Bank v. Harden, supra; 6 C.J. 1166; Masterson v. International, etc., R. Co. (Tex.Civ.App.) 55 S.W. 577. A third person, sued for conversion of or negligent injury to a chattel, cannot dispute the title of the person in possession. Smith v. L. N. R. Co., 208 Ala. 440, 94 So. 489; Birmingham So. R. Co. v. Goodwyn, supra; Code 1923, § 5668. The statute gives a right of action to the bailor for trespass. Appellant's action is in trover and in case. Mecklin v. Deming, 111 Ala. 159, 20 So. 507; Howton v. Mathias, 197 Ala. 457, 73 So. 92; Goodgame v. L. N. R. Co., 218 Ala. 507, 119 So. 218; City D. Co. v. Henry, 139 Ala. 161, 34 So. 389; 6 C. J. 1166; Walker v. Wilkinson, 35 Ala. 725, 76 Am. Dec. 315; L. N. R. Co. v. Miller, 209 Ala. 378, 96 So. 322; Code, § 5670, has been re-enacted with the construction placed thereon that a recovery by either a bailor or a bailee ousts the other of his right of action. Rosser v. Sanders, 219 Ala. 327, 122 So. 340; Browder v. Gunter, 220 Ala. 407, 125 So. 646; People's Auto Co. v. State, 23 Ala. App. 7, 121 So. 907; Id., 219 Ala. 280, 121 So. 908.
The appellant instituted this action to recover damages for the destruction of a chattel on which he held a mortgage and which was in the possession of the mortgagor at the time of its destruction.
Count 1 claimed damages for a conversion; counts 2 and 3 claimed damages for the negligent destruction of the chattel. The court below sustained the demurrer to count 2 and overruled the demurrer to defendant's plea No. 3, alleging payment of damages to the mortgagor. These two rulings bring before us the main questions of law involved in this case and dispense with the necessity of considering other questions.
Count 2 and count 3 are identical with the exception that count 2 omits to state the place where the accident occurred. Any error, therefore, in sustaining the demurrer to count 2 was without injury, as the appellant could get all the benefit under count 3 he could have obtained under count 2. For that reason we hold that the ruling as to count 2 was error without injury, if error intervened.
Under section 5670 of the Code 1923, both the mortgagor and the mortgagee could maintain an action for the conversion of or injury to the mortgaged property. Southern Ry. Co. v. Chambless, 10 Ala. App. 326, 65 So. 417.
One question presented by the ruling on plea 3 is whether a release by the mortgagor in possession at the time the cause of action accrued is a bar to an action by the mortgagee for damages arising from the same cause of action. We are of the opinion that the question must be answered in the affirmative. Harris v. Seaboard Air Line Ry. Co., 190 N.C. 480, 130 S.E. 319, 49 A.L.R. 1452; Masterson v. I. G. N. Ry. Co. (Tex.Civ.App.) 55 S.W. 577; Jones, Chattel Mortgages, § 447, a. We are of the opinion, however, that plea 3 was defective and the demurrer thereto should have been sustained. It nowhere appears with sufficient certainty that Reid released the defendant from liability. Construing the plea most strongly against the pleader, the settlement with Reid was only for his interest in the truck. Reid had the right to settle with appellee for his interest in the truck without prejudicing appellant's right to recover for his interest in the truck, and, in the absence of an averment to the contrary, we cannot assume that the settlement included anything more. The appeal is on the record alone; we do not know what the facts in this regard are, consequently we are not informed by the record as to whether the ruling was error without injury. At any rate, injury is not refuted by the record.
The judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
PER CURIAM.
Affirmed on authority of Lowery v. Louisville N. R. Co., 228 Ala. 137, 153 So. 467.