Tombigbee Valley Railroad v. Wilks
Alabama Court of Appeals
Appeal from Washington Circuit Court. Heard before Hon. John T. Lackland. Action by Willis Wilks against the Tombigbee Valley Railroad Company, for damages for killing stock. Judgment for plaintiff, and defendant appeals.
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Appeal from Washington Circuit Court. Heard before Hon. John T. Lackland. Action by Willis Wilks against the Tombigbee Valley Railroad Company, for damages for killing stock. Judgment for plaintiff, and defendant appeals. There was a fatal variance between the allegation and the proof, the complaint alleging the killing of a cow, and the proof showing the killing of an ox. — 11 Cyc. 1185; 38 Barb. 56; 62 Pac. 968; 2 Words & Phrases, 1706; Parker v. The State, 39 Ala. 365; Watson v. The State, 55 Ala. 150 There is nothing in the contention of the appellant that there is a variance between the…
1Opinion of the Court
WALKER, P. J.-
The complaint in each of its counts claimed damages for an alleged injury to a cow, the property of the plaintiff. The evidence offered was as to the injury to or killing of an ox belonging to the plaintiff. The word “cow” describes only a female bovine animal, and is not broad enough in its meaning to include an ox, which is a male of that species of animal. —Webster’s Dictionary; Marsh v. State, 3 Ala. App. 80, 57 South. 387; Brigham v. Bush, 33 Barb. (N. Y.) 596; State v. McMinn, 34 Ark. 160; 2 Words and Phrases, 1706. An allegation of injury to one thing cannot be supported…
2Cases cited3 opinions
- Marsh v. StateAlabama Court of Appeals · 1912
- State v. McMinnSupreme Court of Arkansas · 1879
- Johnson v. Whitfield & PinckardSupreme Court of Alabama · 1899
3Cited by1 opinion
- Johnson v. StateAlabama Court of Appeals · 1915