ON RBHEAKINS.
On application for rehearing, it is urged by appellee (plaintiff below) that, since the complaint is, it is insisted, predicated, not upon the bill of lading, but upon the defendant’s common-law liability, and since such carrier failed, as it did, to file any special plea setting up the bill of lading and the provision contained therein limiting the amount of damages recoverable for nondelivery of the cattle, the plaintiff was entitled to have such damages measured, not by the terms of the bill of lading (the special contract), which the plaintiff himself introduced, but the rules of law which would, as pointed out in the opinion, have governed in the absence of such a contract, and therefore that we were in error in the opinion in holding that the lower court incorrectly instructed the jury as to the measure of damages. In support of his contention that the complaint, which is in code form (Code, § 5382, form 15), is founded solely on defendant’s common-law liability, we are cited to the case of N. C. & St. L. Ry. Co. v. Parker, 123 Ala. 683, 27 South. 323, where it was in effect so held, *368in that it was there decided that a plaintiff could not recover under such a complaint where the evidence developed that there was a bill of lading issued — a special contract — since, in such case, it was held that there was a variance between allegation and proof.
We find, however, that that case has been expressly overruled on this proposition, and that it is now the law that under such a complaint the plaintiff can recover even by proving a special contract — the bill of lading.—L. & N. R. R. Co. v. Landers, 135 Ala. 510, 33 South. 482; N. C. & St. L. R. R. Co. v. Cody, 137 Ala. 597, 34 South. 1003; Walter v. Ala. Great Southern R. R. Co., 142 Ala. 481, 39 South. 87; So. Ry. Co. v. Webb, 143 Ala. 310, 39 South. 262, 111 Am. St. Rep. 45, 5 Ann. Cas. 97. This being true, and the plaintiff himself having in this case proved and introduced in evidence under the complaint the bill of lading, he thereby gave his own interpretation as to what that complaint was founded upon; consequently that complaint, which, before such evidence was introduced, was comprehensive enough to include a cause of action on defendant’s common-law liability where no bill of lading has been issued for the shipment, because by such evidence, which was of plaintiff’s own choosing, narrowed to a cause of action upon the bill of lading; and certainly, therefore, it seems to us clear that the damages recoverable are, as we held in the opinion, to be measured, as in other cases, by the valid provisions of the special contract sued upon and introduced 'in evidence by the plaintiff. — Authorities supra; Southern Ry. Co. v. Brewster, 9 Ala. App. 600 (63 South. 790.
Since a bill of lading is' not necessary to a cause of action against the carrier (2 Mayf. Dig. 616, § 8), the plaintiff might have given a different interpretation to his complaint by refraining from introducing the bill of *369lading in evidence and by proving merely by parol evidence a delivery to and acceptance by the defendant as a common carrier of the cattle for transportation for a reward (L. & N. R. R. Co. v. McGuire, 79 Ala. 395), in which event the court’s charge as to the measure of damages would have been free from error, as there would have then been no bill of lading before the court, unless the defendant had introduced it in evidence.
Whether, when a defendant introduces in evidence the bill, he could get the benefit of the provision limiting the damages recoverable, without specially pleading such provision, or could do so under the general issue, we need not and do not decide. What we do decide is that when the plaintiff himself introduces the bill under a complaint framed as that here, the measure of damages is governed by the provisions of the bill on that subject, if valid.—Southern Railway Co. v. Brewster, supra. If invalid, then, of course such provisions are not binding, and their invalidity may, as was done in this case, be tested out by requests for or exceptions to charges on the measure of damages, and by the offering of and objection to evidence tending to show a value different from that agreed on in the bill.
The application for rehearing is overruled.