DOUGLASS vs. MONTGOMERY & WEST POINT RAILROAD COMPANY

DOUGLASS vs. MONTGOMERY & WEST POINT RAILROAD COMPANY. [ACTION AGAINST RAILROAD COMPANY, AS COMMON CARRIES'* 3?OR NEGLIGENCE.] 3. JVlmi nonsuit, ivithUllof exceptions, may betaken. — A nonsuit may-1)6 taken, with a hill of exceptions, (Godo, $ 2357,) in consequence of the suppression of tlie plaintiff's deposition, on motion, before the trial is-entered upon. 8. Competency of plaintiff, in action against common carrier, to-prove contents-and value of lost baggage. — In an action against a railroad company, ns a common carrier, to recover damages for the loss -of a passenger's baggage, the plaintiff may prove the contents and value of his trunk bj his own oath. A. .When deposition of party may he ladeen. — When a party is competent to testify in his own favor, his deposition may ho taken, as in ease of other witnesses. Appeal from the Circuit Court- of Montgomery. Tried before tlie Hon. S.- D. Hale. This action was brought by Jules Douglass, against the appellee, as a common carrier, to recover damages for the loss of tbe plaintiff’s baggage while traveling on tbe defendant’s railroad between Montgomery, Alabama, and Columbus, Georgia. When the cause was called for trial, as tbe bil of exceptions states, and the plaintiff bad announced himself ready,-the defendant submitted a motion to.-suppress--tbe plaintiff’s deposition, (which had been taken on interrogatories and cross-interrogatories,) on tbe grounds — “ 1st, that there is ncr-law authorizing the taking of the deposition of a party plaintiff; and, 2d, that the plaintiff was not competent to testify in his own favor.” At'the time of "filing cross-interrogatories, the defendant' had also objected to tbe taking of the deposition," on the ground-that the law does not authorize the plaintiff to be examined, to prove tbe correctness of his demand, in a suit against a corporation.” The plaintiff then showed to the court,.that be resided in the city of Baltimore, Maryland,. which was more than one hundred miles from Montgomery, and that bis deposition had been taken on that account ; and 'stated, that he only proposed to read in evidence so much of his deposition as tended to prove the contents and value of his lost baggage, and' to make out the rest ot his case by evidence aliunde. The court sustained the defendant’s motion, and refused to allow the plaintiff to use any part of his deposition for any purpose. The plaintiff excepted-to this ruling of she court, and, in consequence thereof, .at the next term, took a nonsuit; and he now assigns said ruling as error, and moves to set aside the nonsuit. W. A. GtjNTEK, for appellant. On -principles of-public policy and necessity, the plaintiff, in-'-an action against a common carrier for negligence, may prove the contents and value of his lost baggage by his own oath, after establishing the delivery and loss by other competent testimony. 1 Greenl. Ev. 83, 348; Herman v. Drvnkwater, 1 Greenl. Rep. 27 ; Clarke v. Spence, 10 Watts, 335 ; Gilmore v. Bowden, 3 Fairf. (Me.) 412; 1 Yeates, 34; 2 Watts & Ser, .. 369 ; 3 Barr, 451; 10 Barr, 45; Story on Bailments, $ 454, note 4; 2 Smith’s Leading Cases, (II. & W.V-Notes,) 131. 2. If the plaintiff, being present,- -was competent. †-> testify for himself, his deposition ihight be taken ns in case of any other witness. — Moore v. Hatfield, 3 Ala. 442. Golptiiwaite, Rice S Semple, contra. 1. Section 2357 of the Code authorizes a nonsuit, with a bill of exceptions, only from decisions made '“on the trial of a cause that is, after the trial has begun; That this statute is to be strictly construed, see Palmer v. Bice, 28 Ala. 430. In this case, the motion to suppress the'deposition was made,' as the statute (Code, § 2328) requires it should be made, “before entering on the trialand the nonsuit was taken at the next term. 2...The plaintiff was not competent .to testify in his o.w&.. «favor. — 1 Greenl. Ev. (7th ed.) § 348, note 4; Snbiv v. Eastern liailroad Go., 12 Metcalf, 44. ' 3. If be was competent, there is no statute authorizing his deposition to be taken. Section 2318 of the Code applies onty to witnesses, and does not include parties. [MAJORITY — STONE, J.] STONE, J. It is urged by appellee -that, inasmuch as the decision of the circuit court, -which is sought to be reviewed, was pronounced on a-motion made and heard before the trial was entered upon, the case is not within the -provisions of section 2357 of the Code, which applies only to decisions of the court made on the trial of a cause. The argument is not defensible. Section 23-53 of the Code confers the power of reserving, by bill of exceptions, ‘“any charge, opinion, or decision of the court, which would not otherwise appear of record.” Yet this section contains almost the identical words which are found in-section 2357. Its language is, “Either of the parties in any civil case, during the trial of the cause, may reserve by bill of exceptions,” &c. If we were to confine the operation of section 2357 to decisions pronounced on ¡the final trial, by the same rule we would be required to limit the operation of section 2353 to charges, opinions, and decisions, made during the trial in chief. Yet it is the universal .practice, sanctioned by repeated decisions of this court, to reserve by bill of exceptions questions arising on decisions pronounced in -the preparatory stages of the suit, provided those decisions bear on the final result; and questions thus reserved are reviewed in this court. — Shepherd & Gordon v. Spriggs, 29 Ala. 673; Peavey v. Burket, 35 Ala. 141. We place the same construction on each cited section of the Code, and hold that we will consider of the question. The main question in this cause has not before been considered in this court. We confess that, whatever rule we may-declare, -we perceive probable hardship and injustice in its application. Corrupt men may pervert the privilege of being witnesses in their own causes,-to their personal profit; while, on the other hand, to deny to a party the right of testifying in a case like the present, is almost the equivalent of withholding from thetiaveling public all remedy for losses of their baggage. As we said on a former occasion, the “ result of the introduction of steamboats and railroads is, that common carriers Lave, to a great extent, taken exclusive,,possessi<m of the public thoroughfares of the country.” — Steele & Burgees v. Townsend, at the last term. So, we may add, that railroads and steamboats have almost a monopoly 'of tlie public travel on their respective routes. The traveler is under a moral necessity to accept the car, or the boat’s cabin; and it is part and parcel of that necessity that he shall submit his valuables to the care and control of the employees of such public lines of conveyance. To require of a traveler, whose baggage has been lost while in transit on a railroad, - that, the loss being established by other testimony, he shall aNo prove by disinterested witnesses each article of his wardrobe and its value, is simply to declare railroads cannot be held accountable for their faidts and breaches of contract, because of a defect in the law. We are aware that, in the case of Snow v. Eastern Railroad Co., (12 Metc. 44,) the supreme court of Massachusetts, in a case like the present, excluded the evidence of the plaintiff; holding, that the rule only applied where the defendant, or the employees of the defendant, had been convicted by other evidence of an act of spoliation, or of felony. But the authorities e'xplode this distinction. In'a case against a common carrier before-Montague, B., a question arose about the things in a boxq and he declared, that this was one of "those cáses where the party Iiimself might be a witness, propter necessitatem rei. For every one did not show what he put in his box.” — 12 Vinef’s Abr, 24, pi. 34. Mr.Q-reenleaf says: “Such evidence is admitted, not solely on the ground of the just odium entertained, both in equity and at law, against 'spoliation, but also because, from the necessity of the case and the nature of the subject, no proof can otherwise be expected ; it not being usual even for the most prudent persons, in such cases, tb exhibit the contents of their trunks to strangers, or to provide other evidence of th,eir value. For, where the law can have no force but by the evidence of the person in interest, there the rules of the common law, respecting evidence in general, are presumed to. be laid aside 5 or rather, the subordinate are silenced by the most .transcendent and universal rule, that in all cases that evidence is good, than which the nature of tire subject presumes none better to be attainable.” — 1 Greenl. Ev. § 348, and authorities cited, See, also, Cow. & Hill’s Notes to Phil. Ev. (3d ed.) vol. t of. Notes, 56-7 ; and authorities on appellant’s brief. We hold, that the plaintiff was a competent witness, to testify of the contents of his trunk, and the values of the several-articles. Having ascertained that the plaintiff was a competent witness-to testify in his own behalf, to the extent to which his testimony was offered, the right existed to tak» his testimony by deposition, as in case of other witnesses. . Code, § 2318 ; Moore v. Hatfield, 3 Ala. 442. Judgment of the circuit court reversed, nonsuit set aside., and cause remanded.