American Ry. Express Co. v. Stanley

• Citation: 207 Ala. 380,92 So. 642
• Decision Date: 27 April 1922
• Docket Number: 5 Div. 818.
• Parties: AMERICAN RY. EXPRESS CO. v. STANLEY.
• Court: Supreme Court of Alabama

92 So. 642

207 Ala. 380

AMERICAN RY. EXPRESS CO. v. STANLEY.

5 Div. 818.

Supreme Court of Alabama

April 27, 1922

Appeal from Circuit Court, Chilton County; B. K. McMorris, Judge.

Action by J. J. Stanley against the American Railway Express Company for damages for failure to deliver freight. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

Victor J. Heard, of Clanton, for appellant.

Thomas A. Curry, of Clanton, for appellee.

SAYRE J.

The complaint contained two counts: (1) Against defendant express company as a common carrier; (2) against defendant as a warehouseman; both counting on a failure to deliver a shipment of chickens and eggs consigned to plaintiff at Birmingham from Clanton.

The trial court properly sustained plaintiff's objection to the question put to the plaintiff as a witness on cross-examination, "What is your actual damage in this case?" The proper question would have asked for the value of the things in dispute at Birmingham. Montgomery Co. v. Varner, 19 Ala. 185; St. Louis & San F. R. R Co. v. Cash Grain Co., 161 Ala. 332, 50 So. 81.

Defendant's objection to the question to plaintiff "Does that record"-referring to a book in which plaintiff kept a record of his receipts of consignments by express-"show that you received the shipment in litigation?" was overruled. There was no error in refusing to exclude the witness' answer in the negative. If the effort had been to prove an entry, the book would have been the best evidence, as was decided in Jones v. Journey, 2 Ala. App. 493, 56 So. 850, cited by appellant; but the evidence admitted was not within the reason of the rule against secondary evidence, and any rule, other than that here followed, would frequently result in extreme inconvenience.

Evidence, offered by defendant, as to what was done in the matter of receiving and receipting for other shipments at different times-not in dispute-and the fact that there were such other shipments, was properly excluded as irrelevant and immaterial.

Appellant contends that it was due the affirmative charge against the second count of the complaint. There is no rule more conservative of justice than that-

"There can be no recovery upon a cause of action, however meritorious it may be, or however satisfactorily proved, that is in substance variant from that which is pleaded by the plaintiff."

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