36 Ind. App. 422 | Ind. Ct. App. | 1905
This is an action-to enforce the common-law liability of a common carrier, on account of damages suffered by live stock while being transported from Indianapolis to Chicago by appellant for appellee, The complaint was in one paragraph, and the answer was a general denial.
Appellant offered in evidence an instrument purporting to be a special contract of carriage between the parties, limiting the liability of the carrier in various respects. Upon appellee’s objections the court excluded the offered evidence; the objection made being that the contract is invalid on its face, under an act of congress, known as the “interstate commerce act,” and for the reason that appellee was not offered a choice of rates. The instrument contains a clause in terms as follows: “Tariff rate on this shipment from Indianapolis to Chicago is thirty per cent higher than the rates herein named, if shipment is not made under this live stock contract.”
Tbe instrument offered in evidence contains tbe statement of a consideration rendered by appellant. If there was in fact no consideration, it must be determined from all tbe evidence relevant; and, no matter bow well founded tbe claim may be, it did not justify tbe exclusion of the contract.
Inasmuch as tbe judgment will have to be reversed for tbe error indicated, other questions not likely to arise upon a retrial do not need to be taken up.
Judgment is reversed, and cause remanded, with instructions to tbe court to sustain appellant’s motion for a new trial, and to permit appellee to amend bis complaint, if he so desires.