Brown v. Illinois Central R. R.

JUDGE DuRELLE delivered the opinion ob the court: Tbe appellant brought suit against appellees,the Illinois Central R. R. Co. and tbe Baltimore, Ohio & Southwestern R. R. Co., the petition setting out in three paragraphs damages claimed to have resulted from alleged negligence in transporting three cars of hogs from Bardwell, Ky., to Cincinnati, Ohio. The negligence was averred to have consisted in the delivery of another carload of hogs of inferior size and quality to those shipped by appellant in place pf one carload of appellant’s hogs, and unnecessary delay in the transportation of the other two cars to Cincinnati, by reason [527] of which, the animals deteriorated in weight and quality. It is unnecessary to consider the motions to quash the return of service of process, or the demurrer to the jurisdiction interposed by the Baltimore, Ohio & Southwestern R. R. Co. After these motions and demurrer had been overruled and the petition twice amended, a general de-murrer to the petition as amended was sustained by the trial court, apparently upon the theory that appellant had not sufficiently alleged compliance with paragraph 5 of the contract of shipment, as follows: “It is further agreed by the shipper no claim for loss or damage to stock shall be valid against said railroad company unless it shall be made in writing, verified by affidavit, and delivered to the general freight agent of the railroad company, or to the agent of the company at the station from which the stock is shipped, or to the agent of the company at the point of destination, within ten days of the time said stock is removed from said cars.” It is unnecessary to consider this question, as this court has decided, in the case of the Ohio & Mississippi R. R. Co. v. Tabor (98 Ky., 503), that such a stipulation is in violation of section 196 of the Constitution, which provides that no common carrier shall be permitted to contract for relief from its common law liability. But there is another ground of objection to the petition. In each paragraph it is alleged in substantially [528] the same language that the loss and. damage occurred “by reason of the negligence of one or the other of defendants, or of both defendants, and as to which plaintiffs are unable to say as to whether the one or the other, or both, but one of thesealternatives is true.” It is to be supposed that this alternative pleading was intended to be drawn under subsection 4 of section .313 of the Code of Practice, which provides: “But a party may allege, alternatively, the existence of one or another fact, if he state that one of them is true, and that he does not know which of them is true.” But we do not think that such pleading is authorized by the Code provision. The Code provides for averment of alternative facts. The facts thus averred in the alternative must be alleged of and concerning a definite party or parties. There is no effort in this pleading to allege alternative facts. The facts are definitely averred, but the party of whom they are alleged to be true is alleged in the alternative. Under the rule that a pleading is to be taken most strongly against the pleader, this averment of the petition is insufficient as against either of the appellees. Wherefore, the judgment is affirmed.