Williams v. Ala. Cotton Oil Co.

DENSON, J. The original complaint was filed on the 22d day of March, 1905, and contains six counts, each of which is in trespass for entering upon a certain lot of plaintiff:, walking around and tramping on the same, and shipping cotton seed therefrom. On the 17th day of April, 1906, as the record shows, papers purporting to be counts D, E and F were filed. It may be, and doubtless it is, true that these counts are in case, and that case may he joined with trespass in different counts in the same complaint-; but it. by no means follows from this that these counts do not present a new cause of action and a departure from the original complaint, and were not open to the objection made to them on that ground. Manifestly the gravamen of counts D and E is the destruction by the defendant of an alleged lien for wharfage charges on cotton seed deposited by the defendants on Water street, near the river bank, for shipment by boat. This claim could not possibly involve a trespass to realty; for, if the claim for wharfage is well founded, it must arise from a contract, express or implied, to pay such charges, and therefore rebuts the idea, of a trespass being committed in placing the seed on the river bank. The counts, it appears to us, are utterly foreign to the cause of action as stated in the original complaint, and, if they present a substantial cause of action, it is an entirely new one. In respect to count F, it is not easily characterized; but it seems to-us that the gravamen of it is claim for damages for maintaining a nuisance on a public street, to the detriment of plaintiff as an abutting property owner, and it needs no argument nor authorities to show that this is absolutely foreign to anything alleged in the original complaint, [649] and is a departure therefrom. We are clear in onr conclusion that no error was committed by the court in sustaining the motion to strike these counts. The cause was tried on counts 1, 2, 3, 5, 6, and G, and the plea of the general issue. As has been stated, the numbered counts which compose the original complaint all claim damages for a trespass to realty. Count. 0 was filed at a subsequent term of the court, and the gravamen of this court is the destruction of a lien for wharfage charges. The defendants moved to strike this count, and demurerd to it because of a misjoinder; but obviously the ground assigned for the motion and demurrer, “that the original counts are ex delicto, and count 0 is ex contractu,” is not well taken. The court was confined to the specific ground stated, and committed no error in overruling it. At the conclusion of the evidence the affirmative charge was requested in writing by the defendants, and was given, and a verdict for them was returned, and judgment followed in their favor. While it may be that there is sufficient evidence to show that a trespass was committed by the defendants on the plaintiff’s lot described in the original complaint, by the wagoner going over it with defendant’s wagon, yet there is an entire absence of evidence to show substantial damages to the freehold or to plaintiff’s possession. Nor does the case disclose any important right to be vindicated by the awarding of nominal damages, nor could more - costs than damages be recovered. Therefore, so far as the original complaint is concerned, no reversible error was committed in giving the affirmative chadge for the defendants. — Blackburn v. Alabama Great Southern B. JR. Co., 143 Ala. 346, 39 South. 345. So far as the case made by count C is concerned, the evidence.fails to show that the plaintiff was entitled to charges for Avharfage, [650] or that he had a lien for wharfage, and therefore fails to make case for recovery under that count. Const. 1868, art 1, § 25; Const. 1875, art. 1, § 25; Const. 1901, art 1, § 24; Gity of Demopolis v. Webb, 87 Ala. 660, 669, 6 South. 408. There is no error in the record, and the judgment of the circuit court is affirmed. Affirmed. Tyson, C. J., and Simpson and Anderson, JJ., concur.