Nashville, C. & St. L. Ry. v. Cody

• Decision Date: 18 June 1903
• Citation: 34 So. 1003,137 Ala. 597
• Parties: NASHVILLE, C. & ST. L. RY. v. CODY. [a1]
• Court: Alabama Supreme Court

34 So. 1003

137 Ala. 597

NASHVILLE, C. & ST. L. RY. v. CODY. ^[a1]

Supreme Court of Alabama

June 18, 1903

Appeal from Circuit Court, Marshall County; J. A. Bilbro, Judge.

Action by A. J. Cody against the Nashville, Chattanooga & St. Louis Railway. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The action was commenced in a justice of the peace court, and from a judgment on default against defendant an appeal was taken to the circuit court. In the circuit court a complaint was filed containing two counts. The second count, which sought to recover against the defendant as warehouseman, was on motion of the defendant, stricken. The first count was in words and figures as follows: "The plaintiff claims of the defendant the sum of fifty dollars damages for the failure to deliver certain goods, to wit, one case of notions and one case of oil cloth, received by the defendant as a common carrier, to be delivered to the plaintiff at Albertville, Alabama, for a reward which defendant failed to deliver." The defendant pleaded the general issue, and upon issue joined upon this plea trial was had.

It was shown by the evidence that the goods which it was alleged in the complaint that defendant failed to deliver to plaintiff were shipped to the plaintiff at Albertville; that the bill of lading under which the goods were shipped contained special stipulations limiting the defendant's liability. The evidence for the plaintiff tended to show that he sent for the goods to the defendant's depot, and when plaintiff's agent demanded the goods some goods which were shipped to the plaintiff were delivered to said agent but the goods involved in this suit were never delivered to the plaintiff or his agent. The evidence for the defendant tended to show that the goods which were shipped to the plaintiff were checked into the defendant's depot on January 30, 1901; that plaintiff was notified of the arrival of the goods on January 31, 1901, and that plaintiff sent for said goods on February 1, 1901; that all of the goods shipped to the plaintiff, including those involved in the present suit, were delivered to the plaintiff's agent when he demanded them; and that the plaintiff's agent gave a receipt to the defendant's agent for said goods.

The case was submitted to the court under the following agreement, which was signed by plaintiff's attorney and defendant's attorney: "In this case it is agreed that the court may give a charge to the jury that if they believe the evidence they will find for the plaintiff, or if they believe the evidence they will find for the defendant as the court may deem proper under the law and the...