C. M. McMahen & Sons v. Louisville & N. R.

*67 SAMFORD, J. This is an action wherein plaintiff claims damages on a certain car lot of Irish potatoes shipped from Pollard, Ala., to St. Louis, Mo., in which it was claimed by the plaintiff that as a proximate result of defendant’s negligence the potatoes became damaged by rot. The defendant pleaded the general issue, in short by consent with leave to give in evidence any matter of special defense as if the same had been specially pleaded. The defense was: (1) That the potatoes were damaged by reason of a certain disease, incident to their growth; (2) that there was a clause in the bill of lading requiring claims for loss, damage, or injury to be made in writing within six months after delivery, and that this was not done. There was no question as to the ownership of the potatoes or the right in plaintiff to maintain the suit, and hence any error arising in rulings of the court upon evidence tending to establish ownership and right of action would be without injury. Monogram Co. v. L. &. N. R. R. Co., 6 Ala. App. 629, 60 So 949. In the instant case, the plaintiff made out its prima facie case, which without plea and proof entitled plaintiff to recover, and that part of plaintiff’s evidence showing ownership, right to maintain the action, and the amount of damage was without dispute; in fact, the finding of the trial judge renders harmless all errors affecting the above issues, so far as plaintiff is concerned, when he announced as a part of his decision: “The question is, who is liable?” The remainder of the court’s decision was confined to proof under questions (1) and (2) as indicated supra. 1. Under section 5359 of the Code of 1907, as amended by Acts 1915, p. 824, this court on appeal will review the findings of the trial court on the evidence without an exception having been reserved thereto. Notwithstanding the statute, however, when the evidence is given ore tenus, the finding of the trial court will not be disturbed, unless the conclusions and judgment are plainly contrary to the great weight of the evidence. Bryant v. Lane, 17 Ala. App. 28, 81 So. 364; Deal v. Houston County, 201 Ala. 431, 78 So. 809; Corcoran v. State, 18 Ala. App. 202, 89 So. 835. In this case we cannot say the great weight of the evidence is contrary to the finding of the trial court. 2. The appellee raises the question that there was a stipulation in the bill of lading that “claims for loss, damage, or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property.” While this would be a good plea, if proven (A. C. L. R. R. Co. v. Ward, 4 Ala. App. 374, 58 So. 677), the bill of lading introduced in evidence stipulates: “(b) If such loss, damage or injury was due to * * * carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.” That part of defendant’s defense, a nonfiling of claim within six months, must fail. As we have already seen, the exclusion of the telegrams sent by Shaw & Richmond Produce Company to plaintiff, relative to the purchase of the car of potatoes, if error, was without injury. The ownership and right of action was proven to be in plaintiff, and was so considered by the court in making his decision. The witness Findley testified without objection that these potatoes, when loaded at Pollard, Ala., “were not in anywise diseased.” This was relevant and competent, but as to whether he had had any complaints other than as to the car in question, or whether he proved the fact of the soundness of the potatoes to a jury of Escambia county in .a suit involving these potatoes, was hearsay and inadmissible. A carrier receiving freight in apparently good condition and delivering it in a damaged condition has the burden cast upon it of overcoming a prima facie claim for damages. This is a prima facie presumption which may be overcome by proof, and this was the principal issue determined in this case. We find no reversible error in the record, and the judgment is affirmed. Affirmed.