
    Nashville, Chattanooga & St. Louis Railway v. Cody.
    
      Action against Railroad as Common Carrier.
    
    1. Action against common carrier; bill of lading containing special stipulations limiting liability admissible in evidence; when no variance. — In. an action against a common carrier for injuries to freight, where the complaint is in the form prescribed in the. Code for a suit against a common carrier on a bill of lading, a bill of lading containing special stipulations limiting the carrier’s common law liability is admissible in evidence; and the introduction of such hill of. lading does not constitute a fa’al variance between the complaint and the nroof.
    
      2. Pleading. and practice; waiver of right, to except for giving .the general affirmative charge — When on the tr.al of a civil case after the conclusion of the evidence, the attorneys of each, of the parties enter into an agreement filed of record that the court may give the general affirmative charge for the plaintiff or the defendant as it “may deem proper under the law and the evidence, and. enter "on the record jury and verdict in accordance with the charge of the court as given,” such ' agreement -ameran* s to -a waiver of any right to except by either of the parties to the giving of- the general affirmative , charge because of a conflict arising out of the evidence; the ■ . effect- of such a-n agreement being the substitution of the court for the jury as to .a finding on the -facts.
    Appeal from the Circuit Court-of Marshall.
    Tried before the Hon. James A.-Bilbko.
    ■ This action was brought by the appellee, A.- J. Cody, against the-appellant, the- Nashville, Chattanooga & St. Louis Railway;-as a common ■ carrier. -The action was commenced in a justice of-the peace-court, and from a judgment by 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 lt.O' 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 hill 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 pla-in•tiff 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 tefnded to show that the goods Avliich Avere shipped to the plaintiff Avere checked into the defendant’s-depot on January 30th, 1901; that plaintiff Avas notified of the arrival of the goods on January 31st, 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, Avere delivered to the plaintiff’s agent' when he demanded them, and that the plaintiff’s'agent gave a receipt toi the defendant’s agent, for said goods.
    The ease was submitted to the court under the following agreement, which Avas 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 Avill find'-for the ..defendant, as the court may deem proper under the law and'the eAddence, and enter on the record, jury and verdict, in accordance Avith the charge of the court as given.” Upon the introduction of all the evidence, the court at the request of the plaintiff gave to 'the jury the general .affirmative charge in its behalf. The defendant duly excepted to the giving of this charge-, and also excepted to the court’s refusal to give the general affiriuative charge requested by it.
    There Avas judgment, for the plaintiff fixing his recoveryat $50. The defendant appeals, and' assigns a.s error the giving of the- general affirmative charge requested by .plaintiff, and the refusal to giAre the general affirmative; charge requested Ioa^ defo-mlant, and the rendition of judgment .in favor of plaintiff.
    Oscar IL. Hundley, for appellant.
    The. suit Avas on the common' law liability of the carrier; and the evidence without dispute showing that the goods Avere transported under a special contract, varying-the1'common la.Av liability of the‘carrier, the affirmative charge for the defendant should have been given.- — St: L'ouis Railway Go. 'v. Parker & Go.} 123 Ala. 683. - ■ 1 “..
    
      The defendant was entitled to the affirmative charge because the undisputed evidence showed that the railway, if liable at all, was only liable as a warehouseman, and not as a common carrier. — Tallassee Falls Mfg. Co. v. Railway, 128 Ala. 167.
    The plaintiff failed to make out his case by a preponderance of the testimony, and thus the court erred in giving, the affirmative charge for the plaintiff. There was a written receipt given- by the plaintiff’s agent showing that he had received the goods. This written receipt was prima facie evidence th.at| the agent had received the goods. — Fa,faula! Nat. Bank v. Passmore, 102 Ala. 870.
    McCord & McCord, contra,
    
    cited S. & N. R. R. Co. v. Wood, 66 Ala. 167; L. d N. R. R. Co. v. Oden, 80 Ala. 38; Collins v. A. G. S. R. R. Co., 104 Ala. 390; C. & W. Ry. v. Ladder d Bates, 89 Ala. 612; W. Ry. v. Little, 86 Ala. 159.
   DOWDELL, J.

What was said in .the case of N., C. & St. L. R. Co. v. Parker & Co., 123 Ala. 683, and here relied on bv appellant for authority as; to- a variance between the complaint and the proof, where the complaint, was in Code form on a bill of lading, and the bill introduced in evidence contained special stipulations, was reconsidered and departed from by this court in the later case of L. & N. R. R. Co. v. Landers, 135 Ala. 504; 33 So. Rep. 482.

Tt is quite apparent from the record, that by the written agreement entered into- by counsel for plaintiff and defendant after the conclusion o-f the evidence upon the trial for the court to charge the jury affirmatively for the plaintiff or defendant “as the court may deem proper under the law and the evidence, and enter on the record, jury and verdict in accordánce with the charge of the court as given,” it wa-s not intended by counsel to put, the trial court in error on the ground of a. conflict in the evidence. There was a direct and palpable contradiction in the testimony as- to the delivery of tlm gomia sued for, which would have made it error to give the eral charge in writing at the request of either mrfy. The agreement entered into was a waiver of any right ■to except because of a conflict arising out of the evidence. It was in effect an agreement for the court to be substituted for the jury as to a finding on the facts and to render its judgment accordingly.

•Counsel for appellant in argument admits that the case was virtually submitted to the court without a jury. We find no error in the record and the judgment will be affirmed.

Affirmed.  