1. In the case of Douglas v. Beasley, (40 Ala. 142,) this court held, that the word “ claims,” used in the forms of pleading prescribed by the Code, is not, of itself, a sufficient averment of ownership, in the plaintiff, to a promissory note payable to another; and that a judgment rendered on a complaint on such a note, with such an averment, by default, is reversible on appeal. I dissented in that case, but recognize my duty to conform my judicial action to that adjudication, at least, until it is overruled.
The first three counts of the complaint in this case employ no other averment of ownership in the plaintiff, than the word “ claimsand a demurrer was interposed thereto, on the ground, that there was no allegation of ownership contained in either of those counts. So far from any own*676ership being alleged in those counts, the legal effect of the allegations is, that the title to the cotton is in Price, Francis & Co. The form prescribed in the Code, for. a complaint “ against a common carrier,” contains, in addition to the term “ claims,” the allegation “ to be delivered to the plaintiff,” &c. This is, in legal effect, equivalent to an averment of ownership in the plaintiff. For the law presumes, in the absence of other proof, that the consignee of chattels personal is the owner thereof. Now, if, as in the case of Douglas v. Beasley, the word “ claims” is not a sufficient averment of ownership to sustain a judgment by default; a fortiori, it is not sufficient on demurrer.
In Crimm v. Crawford, (29 Ala. 623,) it was held, that the word “ claims” was sufficient, because that was the only allegation of ownership used in the form prescribed by the Code, “ for the recovery of chattels in specie and that was such an action. It is true, in that case, the court says, “ The only requisite to a good complaint is, to state that the plaintiff claims, and what he claims.” But that must be construed with reference to the case then before the court.
The form prescribed by the Code, for a complaint “against a common carrier;” is clearly and materially different from the one “ for the recovery of chattels in specie,” in this, that the former contains the word “ claims,” and the allegation “ to be delivered to the plaintiff,” while the latter contains no allegation of ownership, but such as may be predicated on the word “ claims.”
So far from the first three counts of the complaint conforming to the requisitions of the Code, they are in direct antagonism therewith, and with the rules of pleading at cjommon law. Hence, the demurrer to the complaint should have been sustained.
2. It was competent for the appellee to prove the weight of the twenty-five bales of cotton, and of two of the bales which were not lost, in order to enable the jury to ascertain the weight of the twenty-three bales which were burned. When the relevancy of evidence depends upon proof of another fact, there is no error in its admission, if such proof is afterward made.—Bell v. Chambers, 38 Ala. 660. *677Hence, the admission of evidence of the weight of the two bales of cotton can not work a reversal.
3. The value of the car burnt had no relevancy to any question in issue, so far as the record discloses.
4. The court did not err in refusing to permit the question to be answered, whether everything was done, which could have been done, to save the cotton from being burned. This .was a matter for the jury to determine, and not the witness. A witness may, in some instances, be permitted to give an opinion; but this is not one of them.—Gibson v. Hatchett, 24 Ala. 201 ; 23 Ala. 469 ; Brice v. Lide, 30 Ala. 647; Gregory v. Walker, 38 Ala. Rep. 26 ; Nuckolls v. Pinckston, 38 Ala. 615.
5. The appellee was a competent witness, under the act approved February 14th, 1867.—Pamphlet Acts, 435.
6. As a general rule, the character of an agent or servant, for caution and skill in the business in which he is employed, can not be proved by the principal, unless it has been assailed by the adverse party. For it makes no difference, how skillful or expert the servant may be, if any loss has occurred from his negligence, for which his principal is responsible. It neither makes out a defense, nor mitigates the damages, to prove the skill of such servant. But, when a party deems it necessary to make proof of the unskillfulness of the servants of the principal, in order to establish the cause of action, then it is permissible for the defendant to prove the character of such servants for skill in the business in which the damage is alleged to have been inflicted. The appellee did not attempt to predicate his claim to damages on proof of the want of skill of the conductor. Until so assailed, the law indulges the presumption, that he was skillful and competent in the business in which he was employed; and it is not error to exclude evidence of the existence of a fact which the law presumes to exist, until that presumption is attempted to be overthrown by proof. The following references will be sufficient for this question.—Franklin v. The State, 29 Ala. 14; Ben v. The State, 37 Ala. 103; Otis et al. v. Thom, 23 Ala. 469.
7. Notwithstanding the appellee assumed the risk of loss by fire, the appellant was responsible for loss resulting from *678the negligence of its servants, though it was occasioned by fire. If a carrier can contract against loss from the negligence of his servants, so as to bind the owner or shipper of goods, yet such contract must be clear and explicit. It is not so in this case; and it would be against public policy to give this contract such a construction, when a different one can be given—Mobile & Ohio R. R. Co. v. Hopkins, at the present term. The notification to the appellee, that the cotton would be carried on an uncovered car, does not relieve appellant from liability, if the putting it on such car was negligence.—Steele v. Townsend, 37 Ala. 247. But, whether such loading was negligence, was a question for the jury. Hence, the court properly refused to give the charge asked.
It results, that the judgment must be reversed, for the error committed in overruling the demurrer.