George v. American Ry. Express Co. , 20 Ala. App. 266 ( 1924 )

The cause was tried in the lower courts on counts 8 and 9, which are as follows:

"Count 8. Plaintiff avers that on or about November 14 and 15, 1921, the said plaintiff was engaged in the business of transporting freight for hire and reward, and, as such, was a common carrier, and that the Wimberly Thomas Hardware Company of Birmingham, Ala., on November 14, 1921, delivered to the plaintiff at Birmingham a shipment of goods consigned to N.W. George, Decatur, Ala., valued at $41.54; that said shipment of goods was sent or consigned C.O.D., meaning that the said plaintiff should collect the value thereof, to wit, $41.54 upon delivery of said goods by the plaintiff to the defendant at Decatur, Ala., and plaintiff avers that on November 15, 1921, that it delivered said shipment of goods to the defendant at Decatur, Ala., but failed to collect amount of C.O.D. charges, to wit, $41.54; and that the said defendant has failed and refused to pay said amount to the plaintiff, although demand has been made by the plaintiff upon the defendant, prior to the bringing of this suit, for the same.

"Count 9. Plaintiff adopts all of count 8, and adds thereto the following: Plaintiff avers that prior to the filing of this suit it paid to Wimberly Thomas Hardware Company the sum of $41.54, amount which it should have collected from N.W. George, but which it failed to collect from George at the time of the delivery of the shipment to him; wherefore plaintiff sues."

These counts each state a cause of action, and were not subject to any of the grounds of demurrer assigned. 10 C.J. p. 268 (section 383), 3.

The cause was submitted to the jury under proper charge of the court defining the issues, and, evidence being in conflict, all charges asking a directed verdict were properly refused.

The charge made the basis of assignment of error No. 10 was fully covered by the court in its oral charge.

We find no error in the record, and the judgment is affirmed.

Affirmed.