Cooper v. Georgia Pac. Ry. Co.

• Decision Date: 09 April 1891
• Citation: 92 Ala. 329,9 So. 159
• Parties: COOPER ET AL. v. GEORGIA PAC. RY. CO.
• Court: Alabama Supreme Court

9 So. 159

92 Ala. 329

COOPER ET AL. v. GEORGIA PAC. RY. CO.

Supreme Court of Alabama

April 9, 1891

Appeal from city court of Anniston; B. F. CASSADY, Judge.

E H. Hanna, for appellants.

Knox & Bowie, for appellee.

CLOPTON J.

The cause of action indorsed on the summons issued by the justice of the peace before whom the suit was originally commenced is a stated account. In the city court, to which it was removed by appeal, plaintiffs filed, without objection, a complaint setting forth as the cause of action the failure of defendant to deliver one barrel of molasses, which it received as common carrier, to be delivered to plaintiffs at Oxford Ala., and on this complaint the cause was tried without the intervention of a jury. The evidence without conflict shows that a car containing whole and half barrels of molasses was shipped, by through bill of lading, from New Orleans, La., to plaintiffs, at Oxford; and when the car, after arrival, was opened, one barrel was found empty. Defendant received the car from the Alabama Great Southern Railroad Company at Birmingham, to be transported to Oxford. Defendant being one of connecting lines of carriers, and in this case the last carrier, the presumption attaches that when the car was delivered to defendant the contents were the same, and the goods in the same condition, as when started by the first carrier at New Orleans; and if it had been shown that loss or injury occurred somewhere on the road of transportation the burden would have been on defendant to show what were the contents of the car, and the condition of the goods, when received at Birmingham. Railway Co. v. Culver, 75 Ala. 587. The presumption avails in favor of as well as against defendant. The burden, in the first instance, is on plaintiffs to show loss or injury while the car was in transitu; that is, to show the quantity and good condition of the goods when shipped at New Orleans, and a failure to deliver the quantity, or a delivery in a damaged condition. There is no evidence tending to show what number of barrels were in the car when it left New Orleans, or that the condition of the goods was different on its arrival at Oxford. The car was sealed at New Orleans, and again sealed at Meridian, without disturbing the first seal by an intermediate carrier; and when delivered to defendant at Birmingham, and opened at Oxford, the seal was intact. The empty barrel was apparently dry, and no head...