Nashville, Chattanooga & St. Louis Ry. v. Cash

70 So. 269, 195 Ala. 307, 1915 Ala. LEXIS 350

• Court: Supreme Court of Alabama
• Decided: November 25, 1915
• Status: Published

Opinion

SAYRE, J.

(1) Plea 4 was a plea of confession and avoidance. The burden of averment and proof as to the matter of avoidance was upon the defendant. The matter of avoidance alleged is that the contract of affreightment contained a clause, providing that the defendant carrier should not be liable for any damages to the property not caused by the negligence of the defendant. Thus far the plea, as for any ground of objection taken against it, does well enough. But the plea should have accounted affirmatively for the damage to the automobile by alleging the exculpatory facts. Instead it merely denied that the damage complained of‘was caused by the negligence of defendant.

(2) Plea 5 was a good plea. — N., C. & St. L. Ry. v. Hinds, 178 Ala. 657, 59 South. 669. For error in sustaining the demurrer the judgment must be reversed.

(3) Apart from any question as to its relevancy or materiality, the paper, offered in evidence by plaintiff with the purpose, we suppose, of showing that he had paid the freight, should not have been received, for the reason that it was not shown to be the act of the delivering carrier or any authorized agent.

Reversed and remanded.

Anderson, C. J., and McClellan and Gardner, JJ., concur.