141 Ind. 267 | Ind. | 1895
This action was brought on the 5th day •of June, 1889, in the Jasper Circuit Court, against the appellant to recovér damages for alleged failures to transport grain, hay and straw from Wolcott, Seafield, and Remington, Indiana, to eastern markets, covering the •entire time from September 1, 1883, to June 5, 1889.
The venue was, by agreement, changed from Jasper to Cass county, and on the 4th day of February, 1890, an amended complaint in five paragraphs was filed in the Cass Circuit Court. The paragraphs are substantially alike, except that each is based upon business done by appellee individually or in connection with other persons. None of such other persons, however, were parties to the judgment in favor of appellee, and none, therefore, are parties to this appeal.
The material allegations of the complaint are, that from the first day of September, 1883, the appellee was engaged in the business of buying, for shipment to eastern cities, hay, straw, oats, and other farm products
It is further alleged that while grain and hay were being offered for transportation, and while prices were high at the points to which appellee desired to ship, the appellant had, or could have with reasonable care and diligence, cars sufficient to transmit to such markets all the products aforesaid; but that appellant failed and refused to supply such cars, but used the same exclusively to take freight at raili’oad crossings and competing places not contiguous to appellant’s line of railroad, and neglected and refused appellee’s freight merely because appellee had no competitive line of railroad on which to ship his hay and grain. The several items of loss by such decline of prices are set out. The demand for damages for all losses to appellee for the six years is fifty thousand dollars.
Motions were made by appellant and overruled by the court, to require appellee to separate his complaint into paragraphs. Of this counsel for appellant says: "Appellant insists that each and every separate demand of cars and the refusal to furnish when it was its duty to do so, constituted a distinct and separate cause of action, and that mbre than one such cause of action can not properly be stated in the samé paragraph of complaint.
We are inclined to think that counsel’s own statement is a sufficient refutation of the contention on this point. Such a complaint of several hundred paragraphs, as contemplated by counsel, would break down of its own weight.
In I Chitty’s Pleading 235, as cited by Perkins, J., in State v. McCormack, 2 Ind. 305, it is stated that: “In civil cases, 'it is a rule that where a subject comprehends multiplicity of matter, and a great variety of facts, there, in order to avoid prolixity, the law allows general pleading.’ ” See, also, Gaff v. Hutchinson, 38 Ind. 341.
The court also overruled a motion to make the complaint more specific. At first appellee depended upon exhibits to the complaint and upon the recitals in such exhibits, as a sufficient substitute for specific allegations as to the times when, the places from and to which, and the articles and amounts for which transportation was demanded; also, as to values of articles, times at which freight rates were advanced, the length of time articles were delayed in shipment, etc.
These exhibits were held by the court insufficient and improper for such purposes and were stricken out on motion. Afterwards, however, by leave of court, the complaint was so amended that the particulars, as we think, were sufficiently alleged.
The complaint is further attacked in arguing against the ruling of the court on demurrer. We think that the amendment to the complaint, above referred to, setting out the particulars as to times when demand was made
As to the contention that the complaint should state facts showing that the appellant could furnish cars at the several times and in the numbers required, that was matter for defense. If the company were in fact unable to furnish the required cars without undue interference with its business or with the rights of shippers at other points, that should be shown by the company. The company held itself out to the appellee, and to the public generally, as a common carrier to the several markets named.
The complaint alleges that there was no competition against appellant at the shipping points of appellee, and that appellant discriminated against appellee byrefusing him cars and at the same time furnishing cars to others doing business at competing points.
We think the allegations of the complaint were quite sufficient on this point, and if there were any reasons why appellant could not furnish cars when demanded, appellant should aver the same by way of answer. Appellant knew the conditions of its own business much
It is finally contended that the complaint is defective, for the reason that the cause of action arose in favor of appellee jointly with others, and that the interest therein held by those others could not be assigned to appellee, as was here attempted, inasmuch as actions in tort can not be assigned.
It is true that the right of action for mere personal torts, such as assault and battery, which die with the party and do not survive to his personal representatives, can not be assigned.
The wrong charged as done by appellant in this case, is the violation of sections 5185, 5190, R. S. 1894 (sections 3925, 3926, R. S. 1881), requiring railroad companies to furnish sufficient accommodations for the transportation of such passengers and property as shall, within a reasonable time previous thereto, offer or be offered for transportation. There is no fine or penalty attached, but the corporation is required to pay to the aggrieved party all damages sustained.
In Louisville, etc., R. W. Co. v. Goodbar, 88 Ind. 213, it was held that a claim against a railroad company under the statute providing for damages for the killing of stock may be assigned. The measure of the damages in that case was the value of the animal killed; ip this case it is the loss to the business and property of appellee occasioned by the failure of the company to transport the property when demanded. In both cases the action is for damages to the owner of property for the wrong done thereto by a railway company in violation of the statute. If the right of action may be assigned in the one case, it may be in the other, and we are of opinion that the right of action in each case, being for damages
Many questions are discussed in relation to the motion for a new trial. It seems to admit of doubt whether the bill of exceptions, as set out in the transcript, is property in the record. The transcript fails to show “the usual formula for the beginning of an ordinary bill of exceptions,” followed by a recital as to the evidence, as suggested by Judge Mitchell in the case of Wagoner v. Wilson, 108 Ind. 210. Neither is there “the usual formal ending of an ordinary bill of exceptions.” In a certificate signed by the judge, the paper in question is called “a bill of exceptions, * * * being the original longhand manuscript of all the evidence.” But the longhand manuscript itself is not a bill of exceptions. Rather, as the statute says, it should “have been incorporated in a bill of exceptions,” after having first been filed in the clerk’s office. In the clerk’s certificate, also, the document is styled “a bill of exceptions * * * containing and being the original longhand manuscript. ” See Marshall, Admr., v. State, ex rel., 107 Ind. 173; Board, etc., v. Huffman, Admr., 134 Ind. 1.
In addition, it appears that the only certificate of the clerk authenticating the transcript is without the seal of the court. Such seal has, in a recent case, been held necessary. Conkey v. Conder, 137 Ind. 441.
Appellee has, however, made no objection to these defects, but has discussed the evidence at length, as if the record was duly authenticated. For this reason, therefore, and also for the reason that, by very liberal intendment, it may perhaps be said that the certificate of the trial judge has cured the defects referred to, we have
It is first urged that the court erred in overruling the motion to suppress certain questions and answers in the deposition of Percy S. Taylor. It is claimed that the evidence thus elicited was irrelevant; that would not make the error, if it were one, sufficient to reverse the judgment. Bischof v. Coffelt, 6 Ind. 23.
But it does not seem that the question is in the record. The court ordered the motion to suppress, together with the rulings of the court thereon and. the exceptions of appellant, to be made a part of the record. Whether such motion, rulings and exceptions could thus be made a part of the record without a bill of exceptions we need not say; for while the motion to suppress and reasons therefor were set out in full, as ordered, yet the rulings of the court and the exceptions of appellant, if any there were, are wholly omitted from the record. It is true that, in the general bill of exceptions, when the deposition was offered to be read in evidence, appellant objected to its introduction; but the reasons there given, other than those relating to irrelevancy, rather tend to show that the ruling of the court, in admitting the evidence, was correct. These reasons show that the appellee was interested in the business, even before the assignment of any cause of action was made to him. We have already seen that the fact that the wrong charged against appellant was the violation of a statute which prescribed damages for such violation, did not prevent the assignment of a cause of action based on such violation.
It is objected that the court permitted the witness, William H. Clark, to testify as to the contents of the purchasing and receiving books of appellee, using, while giving his evidence, an abstract of those books made by
Besides, we are of opinion that appellant, on the trial, waived the right to insist upon this objection. When the appellee was afterward on the witness stand and interrogated as to the same matters, counsel for appellant stated: “The defense will not attempt to controvert the amount received and shipped out as shown by Mr. Clark’s statement.” This would seem to have amounted to a withdrawal of all objections made to the character of the evidence given by the witness Clark.
It is next objected that the court permitted the witness, Henry Wolcott, to testify as to advances made in rates of freight by appellant after there had been a tender of freight for shipment and a demand for cars. It is urged that the payments of such advances made by appellee were voluntary and can not therefore be recovered back.
We think, in the first place, that it was clearly established that the freight paid was nota voluntary payment. In the printed bill of lading used by appellant was the following condition: “Owner or consignee shall pay at the rate below stated, freight charges before delivery, and according to weights as ascertained by either carrier.”
Appellee had one alternative only according to which he might refuse to pay the freight exacted by appellant, that is, not to ship his farm products to market. If he did ship, however, either he or his consignee must pay
Section 5333, R. S. 1894 (section 4038, R. S. 1881), provides that, “The various railroad corporations doing business within the State of Indiana shall not, at any time, increase or advance their rates of freight, or charge for the transportation thereof from one point to another a sum greater than the rate of freight or charge for transportation asked or charged by said railroad corporations at the time such freight is offered or tendered to said railroad corporations for transportation.”
If the overcharges made in violation of this section of the statute can not be recovered back, the statute is itself a nullity. See Louisville, etc., R. R. Co. v. Wilson, 132 Ind. 517, and authorities there collected.
Neither is it true that the foregoing statute is invalid as being in conflict with the right of Congress to legislate upon interstate commerce. It is a regulation to protect shippers doing business in the State from unjust overcharges for transportation.
The admission of certain evidence as to the value, at given dates, of hay and other products, at the shipping points, while improper, was harmless.
The special verdict shows that the jury based their findings of damage by reason of the falling markets upon the price of the different products at the points of destination, which was correct. Appellant was not, therefore, harmed by such irrelevant testimony.
Testimony as to the fluctuation of the markets was certainly admissible.
Because the amount of the freight was not paid or tendered when the goods were offered for shipment and cars demanded, it is argued that there could be no recovery. That depends on the custom of the carrier. In this case, as we have seen, appellant's own bill of lad
There was no error in admitting evidence of statements made to appellee by the officers and agents of appellant in relation to furnishing cars, and other like matters. As to such things, appellant could speak only by such agents. By its printed rules and by the spoken words of its officers and agents alone, could appellant communicate with appellee.
Certain instructions were refused by the court, and this is complained of as error. As to some of the instructions so refused, there was, as we think, no error committed; as to all of them no harm was done appellant, as the jury made no finding of damages on the matters to which the instructions related.
The verdict is fully supported by the evidence. Indeed, the jury rejected a large part, fully three-fourths of the claims of appellee, and only allowed that which was not only fully supported by the evidence but was also unquestionably authorized by law.
The appellant held itself out as a common carrier of such freight as appellee supplied, and to all the points to which appellee desired to ship his products, as alleged in the complaint. Of this there is no question.
In Pittsburg, etc., R. W. Co. v. Morton, supra, 61 Ind. 577, the court says: “Doubtless a common carrier may so hold himself out to the public as to make himself liable for not receiving and carrying goods beyond his own line.” This, without question, appellant did in this case. It is also clear, as we think, that appellant discriminated against appellee, who had no other means of
We find nothing available for the reversal of the judgment, which is therefore affirmed.