made no purchase when he arrived there, and | 4. CARRIERS (§ 227*)-INJURIES TO ANIMALSthat before he went there he had told de- SPECIAL CONTRACT-PLEA. ceased that he would see him that night down at this store. What, then, was his purpose in going there was for the jury to say. [4] Charges 1 and 2, requested by defendant, were properly refused. Besides being otherwise objectionable, each is misleading, calculated to confuse the jury, and make them overlook the fact that the defendant must be free from fault in bringing on the difficulty, in order to avail himself of the right of self-defense. [5] A charge identical in effect with written charge No. 3 was condemned by our Supreme Court in Pate v. State, 150 Ala. 17, 43 PERFORMANCE. In an action for injuries to live stock en route, a plea, after alleging that the animals were shipped under a special contract, made in consideration of a reduced rate, by which plaintiff agreed, at his own expense, to provide such bedding or other suitable appliances in the car as would enable the animals to stand securely on their feet, and that plaintiff failed to provide such bedding, and the animals were injured by reason thereof, was not defective as amounting to a guaranty by the shipper that the animals would stand securely while in the car, without reference to violent shocks or rough usage to which they might be exposed by the negligent handling of the train. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 953-956; Dec. Dig. § 227.*] 3. CARRIERS (§ 227*) TRANSPORTATION OF LIVE STOCK-PLEA-BREACH OF CONTRACT BY SHIPPER. In an action against a carrier for injuries to animals en route, a plea that under a special contract plaintiff agreed to furnish suitable bedding to enable the animals to stand securely, and that they were injured by plaintiff's failure to do so, was fatally defective for failing to further allege that defendant's own negligence did not contribute to the result. [Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 953-956; Dec. Dig. § 227.*] by reason of being weak, or overloading, suffo- Where defendant carrier denied any right of plaintiff to look to it for damages for injury to plaintiff's cattle complained of, because plaintiff had no contract with defendant, such denial was inconsistent with an intention on defendant's part to recognize any contractual liability to plaintiff if the stipulation for notice was complied with, and was therefore a waiver of plaintiff's compliance with such stipulation. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.] 6. CARRIERS (§ 227*)-INJURY TO LIVE STOCK PLEADING REPLICATION NOTICE OF CLAIM. In an action for injuries to stock in transit, the plea alleged failure to comply with the requirement in the shipping contract of notice to the carrier of the claim, and the replication averred that within the time allowed by the contract plaintiff's agent made a claim upon the defendant, and that defendant denied any liability, on the ground that plaintiff's remedy was against the initial carrier. Held, that the replication was good against a demurrer, on the ground that it did not show that the notice was given to, and the denial of liability was made by, an agent authorized by the terms of the shipping contract to bind defendant. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 953-956; Dec. Dig. § 227.*] 7. TRIAL (§ 412*)-CURE OF ERROR-ADMISSION OF EVIDENCE. Admission of evidence of a conversation with defendant's agent, without proof of the agent's authority to act in the transaction, was cured by evidence subsequently introduced to prove that the agent had authority to represent and speak for defendant in the matter in controversy. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 182, 974-977; Dec. Dig. § 412.*] 8. CARRIERS (§_228*)-TRANSPORTATION LIVE STOCK-TERMINAL CARRIER-ACCEPTANCE OF CAR-EVIDENCE. OF injuries to live stock, evidence that it had been In an action against a terminal carrier for defendant's general practice not to receive a car of cattle from a connecting carrier without making an objection if any of the cattle were injured, and that the car in question was accepted without objection, was competent to show that the cattle, when received, had not sustained apparent injuries. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*] 9. CARRIERS (§ 228*)—INJURIES TO ANIMALS -PLEA-BURDEN OF PROOF. In an action against a terminal carrier for ant to establish a plea setting up, as a condiinjuries to cattle, the burden was on defendtion of plaintiff's right to recover, his duty to give notice, in writing, of his claim to some officer of defendant, or its nearest station agent, before the stock was removed, and alleging a failure to comply therewith, on which defend ant had joined issue by a replication alleging | gence of the defendant, and avers that said waiver. animals received their alleged injuries by [Ed. Note.-For other cases, see Carriers, reason of being weak, or overloading, suffoCent. Dig. §§ 957-960; Dec. Dig. § 228.*] cation, heat, fright, or viciousness. 10. TRIAL (§ 191*)-INSTRUCTIONS-ASSUMED FACTS. Where, in an action against a carrier for injuries to cattle, whether averments of a plea as to notice of claim were proved was for the jury, and depended on the jury's belief in the truth of the testimony tending to prove that a paper offered in evidence was a copy of the contract of shipment; and requests to charge, assuming that the paper was a correct copy of the contract, were properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 420-431, 435; Dec. Dig. § 191.*] 11. TRIAL (8 260*)-INSTRUCTIONS-REQUEST TO CHARGE-INSTRUCTIONS GIVEN. The following charges were refused to the defendant: (1) "If you believe from the evidence that the plaintiff failed to give the notice of his claim for damages, as required by the stipulation or provision set out in the second plea of the defendant, or to its nearest station agent to said stockyard, in accordance with the stipulations or provisions set out in said plea, you will find for the defendant under the second count of the complaint." (2) Same as 1 as applicable to the first count. It is not error to refuse requests to charge substantially covered by instructions given. (16) "I charge you that, unless you are rea[Ed. Note.-For other cases, see Trial, Cent. Dig. 651-659; Dec. Dig. § 260.*] sonably satisfied from the evidence that the 12. APPEAL AND ERROR (§ 701*)-RECORD- plaintiff's agent, Neal, had the conversation QUESTIONS PRESENTED-INSTRUCTIONS-AP- regarding said cattle with the employé or PLICABILITY TO EVIDENCE. The trial court cannot be put in error for refusing a request to charge hypothesizing the existence of a fact of which there is no evidence in the bill of exceptions. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2933-2935; Dec. Dig. § 701.*] 13. CARRIERS (§ 230*)-TRANSPORTATION OF CATTLE STIPULATION-WAIVER. employés of the defendant before the dead Cow was removed from the place of delivery, you cannot find for the plaintiff under the first count of the complaint." (18) Same as 16 as applicable to the second count. (13) "You cannot award plaintiff any damfor the cow that died Sunday morning." ages In an action against a terminal carrier for (7) "If you believe from the evidence that injuries to cattle, a request to charge that defendant's assistant yardmaster visited only an officer of defendant, or the nearest sta-Twenty-Seventh street transfer track about tion agent to the stockyards where the cattle were unloaded, had authority to waive the provisions for notice of injury, requiring that notice, in writing, shall be given to some officer of the delivering carrier, or its nearest station agent, before the stock is removed, was properly refused as involving the untenable proposition that the existence of such a contract deprived the carrier of the right, by the act of any duly authorized representative other than those specified, to waive the requirement as to notice of loss or injury. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*] Appeal from City Court of Birmingham; Charles A. Senn, Judge. Action by H. H. Shepherd against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. 10 o'clock on the night of November 21st, for the purpose of ascertaining whether or not said cattle were there, and they were not there at the time, and that they were removed from said track about midnight of said night and taken as quickly as practicable under the circumstances to said stockyard, and were not so handled while being so taken as to cause any of said cattle to be injured, you will find for the defendant." (8) "If you believe from the evidence that the cattle received the alleged injury by reason of their own natural viciousness and propensities, you should find for the defendant." (9) Practically the same as 8. (12) "Only an officer of defendant, or its nearest station agent to said stockyard, had authority to waive the stipulations or provisions set out in the second plea of defend ant." Tillman, Bradley & Morrow and John S. Stone, all of Birmingham, for appellant. Harsh, Beddow & Fitts, of Birmingham, for appellee. The complaint contains three counts, alleging damages to certain cattle while being shipped by freight, owing to the negligence of the defendant. The second plea sets up the condition, as a right to recover any damages for loss or injury, that the owner or person in charge shall give notice, in writing, of his claim thereof to some officer of the delivering road, or its nearest station agent, before said stock is removed, etc. Plea WALKER, P. J. [1] Plea B, after setting A sets up a release from any loss or damage out that the animals were shipped under a or depreciation which said animals, or any special contract, made in consideration of a of them, might suffer in consequence of be- reduced rate for their transportation, avering weak, overloading, suffocation, heat, red that "the plaintiff agreed in and by said fright, viciousness, being injured by fire, or special contract that he would, at his own other causes, which shall not affirmatively expense, provide such bedding or other suitappear to have been caused by the negli-able appliances in the car in which said an imals were shipped as would enable them to | of the contract, but that it was without negstand securely on their feet while in said ligence on his part." South & North Ala. car; and the defendant avers that the plain- R. Co. v. Henlein, supra; Central of Georgia tiff failed to provide such bedding or other R. Co. v. Burton, 165 Ala. 423, 51 South. 643; suitable appliances, and that said animals | Chicago, etc., Ry. Co. v. Calumet, etc., Farm, were injured by reason of such failure." 194 Ill. 9, 61 N. E. 1095, 88 Am. St. Rep. 68, The action of the court in sustaining a de- 122. It follows that a plea which assigns as murrer to this plea is assigned as error. a cause of the injury complained of the shipIt is not doubted that it is permissible for per's failure to take a precaution which his a contract for the shipment of live stock to contract with the carrier made incumbent put upon the shipper the duty of guarding upon him, but does not negative the conagainst such risks as the stock would be ex- clusion that negligence on the part of the carposed to by a lack of proper bedding in the rier also contributed to that result, shows car. This duty is one which is not necessari- less than is required to be shown to entitle ly assumed by the carrier, but, like the du- the carrier to the exemption from liability ties of loading and unloading the stock, and for which it contracted. As this fault in of watering, feeding, and caring for them the plea was pointed out by the demurrer to on the journey, may appropriately be under- it, the conclusion is that the court did not taken by the shipper. South & North Ala. R. err in sustaining that demurrer. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; East Tennessee, Va. & Ga. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489; Central R. & Banking Co. v. Smitha & Chastain, 85 Ala. 47, 4 South. 708; Stiles v. Louisville & Nashville R. R. Co., 130 Am. St. Rep. 429, 446, note; 4 Elliott on Railroads, § 1553. An obvious purpose of such a provision is that the animals be given a more secure footing than they would have if the floor of the car was left bare and liable to become smooth and slippery by the uses to which it is to be put. [2] But it is suggested in the argument of the counsel for the appellee that the stipulation set out in the plea is invalid, because it undertakes to make the shipper guarantee that the animals would stand securely on their feet while in the car, no matter to what violent shocks or rough usage they might be exposed by a negligent handling of the train. We are not of opinion that such a meaning can fairly be imputed to the provision. Its terms do not suggest that it was any part of its purpose to relieve the carrier of responsibility for the breach of any duty with which it remained chargeable. It does not purport to cast upon the shipper anything more than the risk of such loss or damage as may be traceable, not to the negligence of the carrier, but to the lack of bedding in the car, or a suitable substitute for it. So we do not assent to the suggestion that the provision is an invalid one. [4] Similar considerations lead to the conclusion that the court did not err in sustaining the demurrer to plea A. [5, 6] To the plea setting up the failure of the owner or person in charge of the stock to comply with the stipulation in the shipping contract requiring a written notice to the carrier of a claim to damages for loss or injury to the stock, the plaintiff filed a special replication, which averred, in effect, that, within the time allowed by the stipulation for the giving of such notice, the plaintiff's agent made claim upon the defendant and offered to compromise the claim, and that the defendant declined to entertain the offer, claimed that it was not liable for any damage, and that the plaintiff had no contract with it, but that his contract was with another railroad. The averments of the replication fairly import that the defendant, when informed of a claim in behalf of the plaintiff, disavowed any liability to him, not on the ground that its liability was subject to a condition which had not been complied with, but on the ground that the plaintiff had no contract under which it could be held. A denial by the defendant of any right of the plaintiff to look to it for damages for a loss complained of was inconsistent with an intention on its part to recognize its contractual liability to him if a stipulated condition was complied with, and was a waiver by it of a compliance with such condition. Hudson v. Northern Pacific Ry. Co., 92 Iowa, 231, [3] But, under the rule prevailing in this 60 N. W. 608, 54 Am. St. Rep. 550; Western state, in order for the carrier to sustain a Assurance Co. v. McAlpin, 23 Ind. App. 220, claim that it is exempt from liability by 55 N. E. 119, 77 Am. St. Rep. 423; 4 Elliott virtue of such a provision in the shipping on Railroads, § 1514; Bishop on Contracts, § contract, it is not enough for it to show that 792. Several of the grounds of the demurrer the shipper's neglect to take the precaution to the replication imply that the stipulation stipulated for on his part contributed to the as to notice set out in the plea had such efinjury complained of; but it must go fur-fect that the owner of the stock, in making ther and show that its own negligence did a claim against the carrier, could act only not contribute to that result. “If a special con- in person, or through another who was in tract is made and a loss or injury occurs, the charge of the stock, and could deal only with -carrier cannot claim exemption from liability, an officer or agent of the carrier to whom unless he shows, not only that the cause of the notice in such case was required to be its rulings in this connection. Such evidence may be of little probative value, and may be effectually rebutted by affirmative testimony having a contrary tendency. The question of its weight is one for the jury, under appropriate instructions of the court as to their duties in passing on the evidence submitted to them. We find nothing of which the appellant properly can complain in other rulings on evidence, which are mentioned in the argument of the counsel for the appellant. of the carrier. There is nothing in it purporting to affect the carrier's right to deal with the shipper or his authorized representative, in reference to the subject of the shipment, through any agent having authority to bind it in the premises. The averments of the replication are plainly to the effect that the denial of liability was by the defendant, which certainly imports action binding upon it. United States Life Insurance Co. v. Lesser, 126 Ala. 568, 28 South. 646; Johnson v. Etna Insurance Co., 107 Am. St. Rep. 92, 104, note. We are not of i [9, 10] On the issue joined on plea 2, the opinion that the replication was subject to burden was on the defendant to prove that demurrer on either of the grounds assigned. the contract under which the cattle were [7] A judgment of reversal was heretofore transported contained the stipulation set out rendered in this case, which was based upon in that plea. Under the evidence in the case, the conclusion, then expressed, that there was an absence of evidence tending to show that a person with whom the plaintiff's witness Neal stated that he had a conversation after the arrival of the cattle at their destination was an agent of the defendant having authority, real or apparent, to represent or speak for it in the matter of a claim by the plaintiff for loss of or injury to the cattle; and that, because of the absence of such evidence, there was error in admitting, over objection, testimony as to what was said by such person on that occasion. On a reconsideration of the evidence in the case, we have reached the conclusion that the error of the court in admitting the testimony referred to, without first requiring proof of such person's agency, was cured by evidence subsequently introduced, which had a tendency to prove that he was an agent of the defendant having authority to represent or speak for it in the matter of the claim made by the plaintiff, and to waive or dispense with the requirement of the shipping contract as to written notice to the carrier. It follows that the disposition of the case heretofore made by this court cannot be sustained on the ground then assigned. [8] It became a question in the trial whether injuries claimed to have been sustained by the cattle were inflicted while they were in the possession of the initial carrier, or after they were delivered to the defendant, which was the terminal carrier. If it was and had been the general practice of the defendant in the conduct of its business, when the initial carrier tendered to it, as the connecting carrier, a car of cattle, not to receive it without making an objection if any of the cattle were injured, it cannot be said that its acceptance of the car load of cattle without making any objection was without a tendency to support an inference that the cattle, when received by it, bad not sustained apparent injuries. We are not of opinion that the court committed reversible error in 61 SO.-2 the question as to whether the averments of that plea were proved was one for the jury; a finding that they were proved being dependent upon the jury's belief in the truth of testimony offered by the defendant, which tended to prove that a paper offered in evidence by it was a copy of that contract. In this condition of the evidence, the trial court cannot be put in error for refusing to give a charge involving the assumption that that paper was a correct copy of the contract under which the cattle were transported. The refusal of the court to give written charges 1, 2, 13, 16, and 18, requested by the defendant, may be justified by the fact that each of those charges involved the assumption that the contract under which the cattle were transported contained the stipulation as to notice set out in plea 2. [11, 12] The propositions embodied in charges 8 and 9, requested by the defendant, were substantially covered by written charges given at its request. A similar statement is applicable to refused charge 7. Besides, that charge hypothesizes the jury's belief in the existence of a fact of which we find no evidence in the bill of exceptions. [13] Written charge 12, requested by the defendant, was properly refused, as it involved the untenable proposition that the existence of such a contract as the evidence tended to prove had the effect of depriving the carrier of the right, by the act of its duly authorized representative other than one of its officers or its station agent nearest to the stockyards, to waive the requirement as to written notice being given of a claim of damages for loss or injury to the stock transported. What has been said disposes of the contentions raised on the record, which have been sought to be sustained by argument. A reconsideration of the record has brought us to the conclusion that it shows no reversible error. Affirmed. the line and scope of his "authority" at the SLOSS-SHEFFIELD STEEL & IRON CO. v. time he was injured. We think it is suffi WHITTAKER. (Court of Appeals of Alabama. Jan. 23, 1913.) MASTER AND SERVANT (88 256, 258*)-INJU RIES TO SERVANT-SCOPE OF AUTHORITY. In an action for injuries to a servant, an allegation that it was defendant's duty to provide plaintiff with reasonably safe tools, implements, and appliances with which to work, but that defendant negligently disregarded its said duty and failed to provide plaintiff therewith, and as a proximate consequence thereof plaintiff was injured, sufficiently averred that plaintiff was acting within the line and scope of his authority at the time he was injured, and was not objectionable as authorizing a recovery in case defendant's failure to provide such tools was not due to negligence, but to a cause beyond defendant's control. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 809-812, 815, 816-836; Dec. Dig. §§ 256, 258.*] ciently averred that the plaintiff at the time he received his injuries was acting in the line and scope of his employment by the defendant, wherein it is alleged "at said time and place he [plaintiff] was in the employment of defendant, and engaged in and about his duties in unloading a car of coal for defendant, and that while he was so engaged he was injured," etc. "Duties" clearly has reference to the duties of his (plaintiff's) employment. The further contention is that the allegation of this count of the complaint as to the duty of the defendant to provide the plaintiff with reasonably safe tools is so drawn that the plaintiff would have been entitled to recover had the defendant failed to provide such tools, although the failure was not due to negligence, but to some cause Appeal from City Court of Birmingham; beyond the control of the defendant. The alWilliam M. Walker, Judge. Action by Robert Whittaker against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Affirmed. legation of the complaint at which the demurrers on this point are aimed is as follows: "Plaintiff alleges that it was the duty of the defendant to provide plaintiff with reasonably safe tools, implements, and appliances with which to work, but that defendant negligently disregarded its said duty and failed to provide plaintiff with reasonably safe tools, implements, and appliances with which to work, and as a proximate consequence thereof plaintiff was injured as aforesaid." Count 16 alleges, in effect, that defendant was operating coke ovens near Blossburg, Jefferson county, Ala., and in the operation thereof used large quantities of coal which were conveyed to said ovens in cars which were unloaded by means of drop botThe fair and reasonable constructem doors, and plaintiff says that at said time and place he was engaged in the em- tion of this allegation is that the defendant ployment of defendant and in and about his negligently failed to provide the plaintiff duties unloading a car load of coal for de- with reasonably safe tools, and the demurfendant, and while so engaged he was injur-rer, not being well taken, was properly overed as follows: [Here follows catalogue of his injuries and damages.] And plaintiff alleges that "it was the duty of the defendant to provide plaintiff with reasonably safe tools, implements, and appliances with which to work, but defendant negligently disregarded his said duties, and failed to provide plaintiff with reasonably safe tools, implements, and appliances with which to work, and as a proximate consequence thereof plaintiff was injured as aforesaid." Tillman, Bradley & Morrow and L. C. Leadbeater, all of Birmingham, for appellant. Perdue & Cox and Willard Drake, all of Birmingham, for appellee. PELHAM, J. This is an appeal on the record without a bill of exceptions, and the appellant assigns as error the ruling of the court on the defendant's demurrers to the sixteenth count of the complaint. The gravamen of this count is the alleged breach of the common-law duty of the master to furnish suitable appliances with which the servant might perform the duties required of him in and about the master's business. It is in sisted in the first instance that the allegations of this count of the complaint (16) fail to aver that the plaintiff was acting within ruled. The court's action in overruling the defendant's demurrers to the sixteenth count of the plaintiff's complaint was without error, and the case will be affirmed. Affirmed. HOUSE et al. v. DONNELLY. (Court of Appeals of Alabama. Jan. 21, 1913.) 1. JUDGMENT (§ 622*)-RES JUDICATA-SetOFF. Where, in a suit for an installment of rent, defendant pleaded as a set-off plaintiff's alleged breach of an oral contract to make certain repairs, and judgment in that case was rendered for plaintiff for the rent sued for and against defendant on a counterclaim, such judgment was conclusive against defendant's right to plead breach of plaintiff's contract to make the repairs as a set-off, when sued for rent for a subsequent month, though the contract to make the repairs was differently alleged; there being no claim but that there was but a single contract to make the repairs. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1136; Dec. Dig. § 622.*] 2. JUDGMENT (§ 622*)-SPLITTING CAUSE OF ACTION-SET-OFF. terclaim, he must exhibit the whole of his Where defendant pleads a set-off or counclaim and cannot, by using only a part thereof, set up the balance as a defense or counter |