6 S.W.2d 1084 | Ky. Ct. App. | 1928
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *661 Affirming.
The appellant, as its name indicates, is a common carrier. It undertook, for hire, to transfer a large quantity of furniture, household goods, and wearing apparel for the appellees from Louisville, Ky., to Hendersonville, Tenn., and while in transit by truck the entire shipment was destroyed by fire. This action was instituted by the owners to recover of the carrier the value of the property destroyed, resulting in the recovery by plaintiffs of a judgment for $3,200. Failing to obtain a new trial in the court below the carrier appeals. The grounds of complaint and the relevant facts will appear appropriately in the opinion in discussing and disposing of the various contentions.
1. The first complaint of the action of the court below is grounded upon an order sustaining a demurrer to a paragraph of the answer pleading, in substance, that the agent of appellees falsely stated the value of the property lost, thereby obtaining a lower rate of transportation and preventing the carrier from providing adequate insurance to protect itself from a casualty such as occurred. Substantially the same matter was pleaded in another paragraph of the answer, with the exception of the allegation respecting the insurance.
In so far as the pleading asserted a contract purporting to relieve the carrier from its common-law liability, it was void (Constitution, sec. 196); and in so far as it attempted to rely upon the fraud of the shipper, it was defective in failing to set forth facts showing that the carrier was in truth deceived by the valuation alleged *662
(Southern Express Co. v. Fox Logan,
The omission from the pleading of the essential allegations indicated is not supplied by the conclusion of the pleader that the carrier was deceived. The statement of mere legal conclusions in a pleading is forbidden by the Code and disregarded by the court as surplusage. Newman (3d Ed.) Pleading and Practice, sec. 207; Machen v. Bernheim, 93 S.W. 621, 29 Ky. Law Rep. 427; Ky. Judicial Dictionary, vol. 1, p. 623.
Neither does the pleading set forth facts constituting an estoppel. It omits the essential element already observed and the further ingredient of materiality. Crescent Grocery Co. v. Vick,
In so far as the facts averred in the pleading were relevant on the issue of value, they were admissible and actually admitted in evidence, and the ruling of the court on the demurrer was not erroneous or prejudicial.
2. The next criticism is leveled at the action of the court in refusing to give an instruction offered by the appellant. The instruction offered advised the jury that if the plaintiff's falsely, fraudulently, and knowingly misrepresented the value of the articles to be worth the sum of $1,500, and they should believe that the carrier accepted them upon such misrepresentations, then plaintiffs were estopped to claim from the carrier any greater sum than $1,500. Appellant's agent testified that he examined carefully the furniture and household goods to be shipped and asked one of the appellees, or their agent, to make an appraisement of the goods, and that, after a conference, it was stated that $1,500 would be sufficient. He also stated that he carried a blanket policy of insurance for $1,000, and pursuant to the valuation obtained an additional policy of $500. The testimony was denied *663
by the appellees, but, for the purpose of testing the propriety of the instruction offered, it is necessary to assume that the transaction occurred as detailed by appellant's agent. It appears that the agent was familiar with the property and knew as well as the owner the probable value of it. It was apparent to the most casual observer that the property was worth more than $1,500. There was at least one single article that was worth approximately that sum. Under section 196 of the Constitution of Kentucky, no common carrier is permitted to contract for relief from its common-law liability. It is clear that if the testimony tended to prove a contract, which is doubtful, the contract was void under that section of the Constitution. Adams Express Co. v. Walker,
But the appellants insist that by the common law, which prevails in this state, a shipper is not permitted to deceive a carrier or practice a fraud upon it and thereafter take advantage of such deception. But it does not appear that the appellant was deceived. The property was exhibited to it, and it was not in a sealed package or a closed box. It knew exactly what was delivered to it, and the facts shown do not bring the case within the rule of estoppel or fraud which prevails in this state. Southern Exp. Co. v. Fox Logan,
The case here is unlike Illinois Central Railway Co. v. Fontaine,
In the case just cited a transfer company undertook to carry goods from Lexington to Nicholasville, and they were destroyed by fire while in its custody. It was held that the carrier was liable as an insurer for the value of the goods lost. Stiles et al. v. L. N. R. R. Co.,
3. It is next insisted that the instruction on the measure of damages was incorrect. It is conceded that the instruction given was in accordance with the decision of this court in the case of Davis v. Rhodes,
4. It is next insisted that the court erred in directing the jury to find for the plaintiffs, but, as we have seen, a carrier is absolutely liable for the loss of goods of the character here involved, except in certain instances not appearing in this case. Farley v. Lavary,
Since the delivery and loss of the goods were admitted, the court was warranted in directing the jury to find for the plaintiffs the value of the goods lost in accordance with the measure of damages incorporated in the instruction on that subject. C. N. O. T. P. Ry. Co. v. Mullane's Adm'r,
5. It is next urged that the court erred in instructing the jury to disregard the counterclaim of appellant. The counterclaim consisted of an allegation that the appellees had carelessly packed the trunks and boxes shipped by including in their contents inflammable materials of an inherently dangerous nature, as a result of which the fire was caused, resulting in the loss of appellant's truck. There was no proof of any negligence on the part of the owners in packing the goods. In fact, some of the goods were repacked by appellant's agents, and all of them were carefully packed. The evidence showed that nothing of an inflammable character was included in the shipment, and there was no testimony tending to prove that the fire resulted from any inherent quality of the goods. When there is no proof to sustain a claim asserted, the court is justified in directing the jury to disregard it. McClain v. Boyett,
6. It is strenuously insisted that the court erred in permitting the jury to have in its possession a list of the property lost, which had not been introduced in evidence. The petition set forth a list of the lost property and the same list was repeated in the answer, in connection with the denial of its value, or that it was delivered to the carrier. The list consisted of more than a hundred items of separate value and had been testified about at great length. It appears from the bill of exceptions that after the jury had retired to their room they expressed to the sheriff a desire to see the judge. The judge responded to the request and immediately returned to the courtroom and announced in the presence of counsel for both litigants that the jury desired the list of the articles alleged to have been lost by the plaintiffs, and which the witnesses had used in testifying. The judge then obtained the list from one of the plaintiffs and delivered it to the *666 jury. No objection was made by the appellant's counsel, although he was present, and witnessed the transaction. After the verdict, counsel complained of the action of the court in that respect and filed an affidavit that he did not object or except at the time for the reason that he had not been afforded an opportunity to examine the paper, except in the hands of the plaintiffs while testifying and was unable to remember or reproduce the contents of the paper. It is apparent that counsel permitted the paper to go to the jury in the belief or hope that it would benefit appellant, which effect it probably had. Plaintiffs had placed a valuation of $5,829.20 on the property lost, all of which was minutely listed and valued in the paper. The jury did not accept the plaintiff's valuation, as the verdict was for only $3,200. Counsel not only failed to object to the paper being sent to the jury, but likewise failed to ask for an explanation or to indicate a need for additional enlightenment as a basis for an objection.
Section 321 of the Civil Code provides as follows:
"After the jury have retired for deliberation if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their counsel."
In Security Finance Co. v. Cook,
The list of lost articles was contained in both the petition and the answer in this case, and they could have been given to the jury within the ruling in that case. Cf. Newport News M. V. R. Co. v. Mendell, 34 S.W. 1081, 17 Ky. Law Rep. 1400.
In Abraham Sons v. Fallis,
It is apparent that the court has a discretion in matters of this kind, and, in the absence of objection by counsel we find no reversible error in what was permitted in this case. Indeed, for all that appears, the circumstance may have been beneficial to the appellant. The jury could examine the list and exercise its independent judgment as to the value of each item. The articles were of such character that the knowledge of the jury might well be applied in revising the estimates of the witnesses. The substantial difference between the verdict of the jury and the valuation of the witnesses might be traceable to this fact. However this may be, litigants may not *668
experiment with a jury and then complain after the event of something that was allowed to pass with their tacit consent, or at least without objection seasonably made. Moore v. Louisville Hydro-Elec. Co.,
7. The final insistence that the verdict of the jury is contrary to the evidence cannot be sustained. There was ample evidence to justify the verdict of the jury. Indeed, the testimony on both sides made it plain that the furniture lost was especially elegant and in excellent condition, and possessed a value beyond the amount allowed by the jury. The credibility of the witnesses must necessarily be judged by the jury, and on controverted questions of value we repose confidence in the finding of a properly instructed jury within the limits of the proof. Civil Code, sec. 126, subsec. 4; Stewart's Adm'r v. L. N. R. Co.,
The proof fully sustained the verdict, and in fact indicated a value greater than the jury allowed. We find no reversible error in the record.
The judgment is affirmed.
