We wish to make it clear that we did not say that plea 6 was defective because it was a partial defense. Of course, a plea can set up a partial defense by confession and avoidance to that extent. If it purports to be a defense in bar of the entire action, and its substance is such that it is in fact only partial, it is subject to demurrer, and our cases so hold. 16 Alabama Digest 81, Pleading, 80. Plea 6 asserted certain facts relating to a certain class of articles, and asserted that plaintiff should not recover for such articles. It did not therefore purport to set up a defense to all the articles sued for not in that class. It was not therefore subject to the objection that it was only a partial defense, as that was all it purported to be, but was objectionable in that it did not name the articles to which it related.
While plea 4 is not as clear as it could be in that respect, we think it may be interpreted as referring to all the articles sued for, so as not to be subject to that objection. On such a plea the proof need not extend to all the articles, but if proof was made as to any of them, to that extent the plea was proven.
We have not mistaken the complaint as being based on a contract. The form of complaint predicates the action on a duty as a common carrier; that is an insurer, not dependent upon negligence. Alabama Great Southern R. R. Co. v. Grabfelder,83 Ala. 200, 3 So. 432; Frederick v. Louisville Nashville R. R. Co., 133 Ala. 486, 31 So. 968.
But as we interpret plea 4 in connection with such complaint, it is to assert that as to those goods it is not liable as a common carrier. In order to acquit itself of liability in such a plea, it should assert that it did use due care. But there was no demurrer for such failure.
We think that our interpretation of the situation was correctly stated in the former opinion.
Application for rehearing overruled.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.