Beck, J.
(After stating the facts.) There are allegations in the petition appropriate to an action seeking to enforce against the defendant a liability under the statute on account of its being the last of a connecting line of carriers, and other allegations appropriate to an action seeking to enforce a common-law liability upon ihe defendant; and as against a general demurrer the allegations sufficiently set forth a good cause of action, either under the common law or under the statute. Such a petition, upon special demurrer pointing ’out the defects, would have been held to be bad for duplicity. But there having been no special demurrer to the petition, and the parties having gone to trial upon the petition as it stood and the answer thereto, and having introduced evidence relative to the issues raised, we have to determine whether or not there was evidence to support the verdict in favor of the plaintiffs under both of the causes of action as stated in the petition.
The property alleged to have been injured and damaged in transportation was delivered to the initial carrier at Horse Cove, Ky., under a contract of shipment made with the Louisville & Nashville Bailroad Co., to he transported from there to Columbus, Ga. Before the property being transported (a car of mules) reached Birmingham, Ala., over the line of railway of the initial carrier, Fortson, a member of plaintiffs firm, who it appears was in charge of the stock, and who had preceded, upon a passenger drain, the freight-train to which was attached the car of mules, upon his arrival at Birmingham went to the office of the defendant company in that city to get a pass from Birmingham to Columbus, which it seems it was customary for this railway company to issue to shippers of stock who were in charge of the same. The agent. of the defendant company, to whom he applied for the pass, refused at first to issue it, because the car of freight was not routed over the defendant’s line of railroad. Then, instead of standing upon the original contract of shipment from Horse Cove, Ky., to Columbus, Ga., and having the final carrier to receive the mules from the preceding carrier as in good order, if as a matter of fact they were in good order, Fortson, in order to procure a pass, entered into a new contract of. shipment with defendant company, or, as stated in his own words, “I entered into this contract for the shipment on account of this not having been marked in care of the Central of Georgia Kailway at Birmingham. I did enter into this contract (exhibit 9) at Birmingham, in order to get a pass from Birmingham to Columbus. The defendant charged me local rates of $56 on the shipment of mules in question from Birmingham to Columbus. . . In addition to that, defendant issued me free transportation from Birmingham to Columbus.”
Not only is there an entire absence of direct proof, or proof h> show a state of facts from which the presumption would have arisen that the freight in question was received in good order from the initial carrier, but from the evidence introduced by the plaintiff it is shown that upon an independent contract of shipment, entered into between the plaintiff and defendant, the car-load of stock was turned over to the defendant by the shipper, to be transported under the contract last referred to. There is nothing to-support the cause of action seeking to enforce liability against the defendant under the statute; and it remains to determine whether or not there is evidence to support a verdict against the defendant-company under its common-law liability. After a careful reading of the record, it appears that this evidence was wanting. Injury to a number of the mules shipped was shown, but every presumption of negligence upon the part of the defendant railway company was overcome by uneontroverted testimony.
In view of the conclusions that we have reached, it is unnecessary for us to pass upon the questions raised by the assignments of error upon the court’s refusal of the written requests to charge, submitted by counsel for the plaintiff in error. And the exceptions to the court’s rulings upon the admission of evidence seem to have been abandoned.
Judgment reversed.
All the Justices concur.