It is true we refer in this opinion to count 2 in the case of Walter v. A. G. S. R. Co., 142 Ala. 474, 39 So. 87, which was there held sufficient; and state that counts 2 and 3 in this case follow in form that count. In citing and referring to that case, we do not overlook the fact the count 2 contained the averment that the goods were not delivered to the plaintiff in the condition in which they were received by the terminal or delivering carrier, and the delivering carrier was the only defendant in the case. Counts 2 and 3 in this case contain no such averment as to the connecting or delivering carrier, and there are three defendants in this case. Such averment as to the connecting or delivering carrier is' not necessary.
It must be remembered that the Walter's Case, supra, was before the passage of the Carmack Amendment (U.S. Comp. St. §§ 8604a, 8604aa) which was construed in C. N.W. Ry. Co. v. Whitnack, 258 U.S. 369, 42 Sup. Ct. 328, 66 L.Ed. 665. Counts 2 and 3 in the present case allege a cause of action, prima facie, against each and all of the defendants, whether initial, connecting, or terminal carrier, as they allege the apples were received by the initial carrier in good condition, and were damaged when delivered to the plaintiff by the terminal carrier. C. N.W. Ry. Co. v. Whitnack, 258 U.S. 369,42 Sup. Ct. 328, 66 L.Ed. 665; L. N. R. Co. v. Roden Gro. Co.,209 Ala. 694, 96 So. 912; section 5548, Code 1907.
The application for rehearing is overruled.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.