Anniston Mfg. Co. v. So. R'y Co.

ANDERSON, J. The bill of exceptions in this case sent up as the return to the writ of certiorari, being different from the one contained in the transcript as originally filed, must be regarded bv us as; the true and correct record. — Alabama Great Southern R. R. v. Dobbs, 101 Ala. 219, 12 South. 770 ; Pearce v. Clements, 73 Ala. 256. The bill of exceptions in the original transcript, as wrell as the one sent up as a return to the certiorari, each recites that it contains “substantially all the evidence” ; but they both recite that turn certain opinions of the Railroad Commission were introduced in evidence. The last bill of exceptions does not set out said opinions, but recites that opinions of certain dates were introduced, and then instructs the clerk to set out one being of a different date. Should we be permitted under the rules to consider the two bills of exceptions in connection with each other, it would be of no benefit to the appellant, as the opinions as set out in the [356] original record are not of the date as mentioned in either one as to the ones that were in fact introduced, and do not answer to the description of those ordered to be inserted. “It is a rule now inflexibly settled in our practice, by a long current of decisions, that this court will not establish a bill of exceptions, nor award a certiorari to bring it up as a part of the record, even if signed, where there are blanks in material parts of the instrument, and the papers intended to be inserted are not properly identified.” — Pearce v. Clements, 73 Ala. 256 ; Parsons v. Woodward, 73 Ala. 348 ; Kyle v. Gads-den Land & Improvement Co., 96 Ala. 376, 11 South. 478 ; Elliott v. Round Mountain Co., 108 Ala. 646, 18 South. 689 ; Tuscaloosa County v. Logan, 50 Ala. 503 ; Strawbridge v. State, 48 Ala. 308 ; Garlington v. Jones, 37 Ala. 240 ; Looney v. Bush, Minor, 413. Nor does the certificate of the clerk to the x^eturn, that “the opinions set out were the only ones on file,” help matters. They . may be the only ones on file when the certificate was made up, but do not appear to be the identical ones that were introdixced in evidence. — Parsons v. Woodtoard, supra. The trial court did xxot err in sustaining defendant’s objection to the question to witness Goodwin, “How much did the L. & N. R. R. charge for hauling coal froxn Blossburg and Birmingham to Gadsden axxd Alabama City?” Even if admissible to show charges of other' carriers, it certainly ought to be confined to a comparison between the points involved, and xxo.t extexxd to the inquiry of what a carrier xxot a party to the suit was charging for hauling coal to a point distinct froxn the ones material to the issxxe. Besides, the plaintiff was xxot hurt by the action of the court, as it had just been permitted ■ to prove what the Louisville & Nashville Railroad charged for hauling coal to Anniston, thus getting the benefits of the comparison of rates between the points involved. We caxxxxot reverse the trial court for sustaining an objection to the qxxestioxx, “Has the traffic increased on the Southern Railway since 1899, and was not the traffic greater since 1899 than it wag for two years prior there [357] to?” If not otherwise illegal, it was leading and suggestive. Even if Kennedy could state what was considered among railroad men as a reasonable rate, the objection was properly sustained, as the question had no reference to the rate between the points at issue. What might be a reasonable rate over one road might not- be over another, or even between different points on the same road. There was no error in not permitting the plaintiff to prpve what -defendant charged from Chattanooga to points in Tennessee and Kentucky. The conditions in Tennessee and Kentucky may be quite different from what they are in Alabama. What may be a reasonable rate in one state may be unreasonable in another. In order to make the rate in one state evidence of what is reasonable in another state, circumstances and conditions must be similar, and proof of what was charged in Tennessee and Kentucky was certainly not admissible until it was first shown that conditions were substantially the same as applied to the road in Alabama. The return shows that an opinion of the Railroad Commission, rendered October 7, 1901, ivas introduced in evidence, and the appellant contends that it was error as said opinion could have no application to freight charges previous to the rendition thereof. It is true that the determination of the commission, under section 3496 is prima facie, evidence only of charges made subsequent to the determination, and does not ■apply to charges collected previous thereto; but we cannot hold that the trial court improperly admitted the. opinion iu evidence, as the third and fourth counts contain claims for charges collected after the opinion was rendered. If the evidence supported any part of the complaint, it was not error to let it in; and if it had no reference to other parts of the claim, it was incumbent upon the party against whom it was introduced to have it limited. The first part of the oral charge excepted to was erroneous. It required the plaintiff to prove to the “reasonable certainty” of the jury, and which required too high a degree of proof. — Battles v. Tollman, 96 Ala. 403, 11 South. 247 ; 3 Mayfield’s Dig. pp. 597, 598. [358] Appellee insists that, since the bill of exceptions does not contain all the evidence, -thm court will presume there was evidence offered to support the action of the-trial court, and cites Wadsworth v. Williams, 101 Ala. 264, 13 South. 755. We understand Justice Coleman to mean in said case that where charges are ashed, postulated on certain facts, and the hill of exceptions does not set out all the evidence, this court will presume there was evidence that would justify the action of the trial court in giving or refusing said charges. That- rule can have no application to the oral charge excepted to in the case at bar, as it exacted too high a degree of proof of the plaintiff and was an incorrect statement of the law. As this case must be reversed, and as the record fails to disclose a complete history of the trial in the court below, we will not attempt to consider the other assignments of error. The judgment, of the city court is reversed, and the cause remanded. Haralson, Tyson, and Simpson, JJ., concur.