Holland v. Southern Express Co.

HEAD, J. — In the case of McDaniel v. Johnston, 110 Ala. 526, we held that an action against a common carrier, the same, in principle, as the original complaint in this cause, was an action ex contractu, and not ex delicto, citing A. G. S. R. R. Co. v. Eichofer, 100 Ala. 224; McCarthy v. L. & N. R. R. Co., 102 Ala. 193. Counts 2 and 3, filed by way of amendment, were in [131] case, and could not be legally joined with the original complaint. The court, therefore, properly struck them from the file, on motion of the defendant. If, by any just construction, the averments of negligence in these amendments could be regarded as surplusage, and the amendments taken to be actions on the contract of carriage, they would add nothing of value whatever to the original complaint, and would be useless incumbrances of the record. It results, also, that the assignment of error touching the admission of evidence of ■ negligence on the part of the defendant, as a warehouseman, cannot be sustained. The undisputed evidence, even though plaintiff has been permitted to prove all that he attempted, in reference to the determination of the defendant’s liability, as a common carrier,- is, so far as material, substantially, the same as that presented to us on the former appeal; and adhering to the view then taken of it, we hold that the general charge was properly given for the defendant. Affirmed.