Douglass v. Montgomery & West Point Railroad , 37 Ala. 638 ( 1861 )

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.

[2,] 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.

[3.] 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.