33 Ind. App. 564 | Ind. Ct. App. | 1904
This action was tried on the plaintiff’s amended and substituted complaint, which was in two paragraphs. The first paragraph alleges that the appellant is a common carrier, with a line extending from Indianapolis, Indiana, to Cincinnati, Ohio; that the appellee is a corporation; that just prior to April 17, 18-91, the appellee sold and agreed to deliver to the Gates City Brick Company, at Gates City, Virginia, a car load of brick machinery, to be delivered by the appellant to the Gates City Brick Company, at Gates City, Virginia, within a reasonable time; that at the time the said machinery was delivered to the appellant the appellant gave the appellee the following receipt: “Indianapolis, 4-17, 1891. Received in good order, from C. & A. Potts & Co., at the depot of the Big Eour railroad, the articles named below to be delivered in like good order, without delay, to the Gates City Brick Company, at the station at Gates City, Virginia, as per conditions in company’s bill of lading.
“Marks. Article. Weight.
“1 Car load brick mach.
“No. 6165 O. O. C. & St. Lr
“Signed by “W. A. Sullivan.
“Original.”
Among other terms contained in the hill of lading filed > with the complaint is the following: “This hill of lading contracts rates from - to Preston, Virginia, via -at sixty-two cents per 100 lbs. and charges advanced at $-.”
The second paragraph is identical with the first, except that it' contains an averment that the said bill of lading
The first paragraph of answer was a general denial. The second paragraph of answer is as follows: “For further answer the defendant says that it is true that the defendant did enter into a contract with the plaintiff, and that the contract between the parties was and is in writing; that .a copy of said contract is herewith filed, and made a part hereof, marked ‘exhibit A/ and that said contract is the sole and only contract executed.between the plaintiff and defendant. The defendant says that the paper or instrument set out in the body of each paragraph of the complaint is not a copy of the contract between the parties, but is what is called a ‘shipping ticket’; that the said shipping ticket was executed in duplicate, one copy of which was delivered to the shipper, and the other retained by the defendant, but both copies referred to the bill of lading, a copy of which is, as aforesaid, herewith filed, marked ‘exhibit A,’ and contains the contract between the parties. The defendant further avers that at the time of making the
“The defendant avers that the rate of freight was agreed upon and fixed by said parties, and was intended to be fully embodied and written in said bill of lading, but by inadvertence and mutual mistake the word ‘Indianapolis’ was omitted from the clause of said bill of lading, which read thus: ‘This bill of lading contracts rates from-to Preston, Virginia, at sixty-two cents per 100 lbs. and charges advanced at $-’; that it was fully agreed and understood by both the parties that the rate of sixty-two cents per hundred should be sixty-two cents per hundred from Indianapolis to Preston, but by mutual mistake of the parties the word ‘Indianapolis’ was not inserted after the word ‘from.’
“The defendant avers that it did transport the property, in said contract mentioned, over its own lines, safely and without delay, and with all reasonable dispatch did safely carry and deliver the said property to the lines of carrier with it connecting; that such carriers did safely transport and without delay deliver said property at the station of Preston, Virginia; that the said' carrier did make all reasonable and diligent inquiries to ascertain who the consignee of the plaintiff was, but was unable to find any consignee, and at once so informed the plaintiff; that the defendant immediately after learning that there was no consignee of the plaintiff at Preston, Virginia, or other person to whom the property could be delivered, or who would receive the same, so notified the plaintiff; that after such notification the plaintiff requested the defendant to return the property to the city of Indianapolis, and the defendant, acting upon the request of the plaintiff, did cause the prop
Exhibit A made a part of the .second paragraph of answer is the same as exhibit A made a part of the complaint. The appellee replied to the second paragraph of answer by a general denial. The appellee filed a motion to require the appellant to produce for inspection certain papers, which motion, over the objection of appellant, was sustained. The case was tried by a jury, and a verdict returned in favor of appellee.
The errors assigned are that the court erred, first, in overruling the separate demurrers to each paragraph of the complaint; second, in sustaining the motion of appellee to require the appellant to produce, for inspection certain documents and papers; and, third, in overruling appellant’s motion for a new trial.
“The act of appellant alleged to have caused the loss was a tortious one, and amounted in law to a conversion.” Chicago, etc., R. Co. v. Fifth Nat. Bank, 26 Ind. App. 600. Appellant disregarded instructions as to the place of shipment, and lost the benefit of exemption from liability. “The effect of a misdelivery of goods is in general the same as a total failure to deliver them at
' It is also urged against the complaint that it does not show that the right of action is in the plaintiff, and prima facie the right of action is in the consignee. The complaint avers that said car of machinery shipped on the 7th day of April, 1891, as aforesaid, was then and always has been the property of the plaintiff, which the defendant agreed to carry. The language of the bill of lading as to delivery beyond appellant’s line is as follows: “Which the C. C. C. & St. L. Ry. agrees to transport, with as reasonable despatch as its general trains will permit, to destination, if on its road, or otherwise to place on its road when same is to be delivered to any connecting carrier.” Appellant contends that the language “any connecting carrier” leaves a discretion to the initial carrier where, as here, no specific directions are given by the shipper. In the case at bar the place of shipment was specified by the receipt. ETo other instructions were given. Appellant disregarded the stipulation as to the place of shipment, and shipped to another point. This was the initial wrong to
In support of the proposition that the provision of the shipping ticket reading “as per conditions in company’s bill of lading” made the bill of lading and any provision written in it the governing contract between the parties, appellant cites the following cases: Cincinnati, etc., R. Co. v. Berdan & Co., 22 Ohio C. C. 326; Wilde v. Merchants, etc., Transp. Co., 47 Iowa 272; Fitzmaurice v. Bayley, 9 H. L. Cas. 78. The case first named reaffirms the doctrine that a common carrier may limit his liability by a fair contract, but can not avoid liability for his own negligence. It holds that a shipper is bound by the conditions of a bill of lading which he accepts at the time of the. shipping of the» goods, althotigh he does not receive such bill of lading, or agree to it in writing.
“Where goods were shipped by railroad by the consignors at one place to consignees at another place, and under a custom, the railroad company instead of issuing a bill of lading, signed a receipt for the goods prepared by the shipper, which, at the instance of the railroad company, contained the clause, ‘subject to the terms and conditions of the E. E. Oo.’s bill of lading,’ and such bill of lading contained the condition that ‘no carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto, by causes beyond its control; or by floods or fire’ not due to its own negligence, the provisions of such bill of lading become incorporated into the contract of shipment, even though the shipper was not aware that such provision was contained therein, he having the means to acquaint himself of such fact, and in such case neither the shipper nor the consignee can recover for loss by fire of the goods shipped,' while in the possession of the carrier or of a connecting carrier,
Wilde v. Merchants, etc., Transp. Co., supra, holds that “where a common carrier, upon the delivery of merchandise for transportation, issued to the consignor a shipping receipt which stated that the bill of lading would be issued upon application at a place designated therein, and that the merchandise would be transported subject to the conditions expressed in the bill of lading, held, that the bill of lading and not the shipping receipt embodied the contract of the parties, and that the consignee Would be bound by the conditions expressed in such bill of lading.”
In Fitzmaurice v. Bagley, supra, it is held that one paper referring to another in which the terms of agreement are stated will constitute a contract sufficiently executed, according to the provisions of the statute of frauds; and this applies to the case at bar. Dunbar v. Charleston, etc., R. Co. (S. C.), 40 S. E. 884.
Rone of the cases cited in the very able brief of appellants hold that conditions written into the regular bill of lading — not read by the shipper — and without his knowledge, and not assented to or authorized by him, will be binding upon him.
It is denied in the complaint that any bill of lading was ever assented to by appellee or brought to his notice until long after the goods should have been delivered at their proper destination.
The action of the court in sustaining appellee’s motion to produce for inspection certain papers is assigned as error. It is insisted that such a motion should be sustained only upon a clear and full showing; that plaintiff having demanded what it had no right to demand, and having failed' to give a proper description of a great number of the papers and documents demanded, the motion, as a whole, should have been denied. It is conceded that some of the docu
The following causes for a new trial are discussed in the order named: (1) The verdict is not sustained by sufficient evidence; (2) it is contrary to law; (3) errors in rulings on the evidence; (4) instructions refused; (5) instructions given.
It is argued that the evidence is not sufficient because a bill of lading was not introduced. To quote from appellant’s brief: ’ “It was absolutely essential to a recovery by the plaintiff that a bill of lading should have been given in evidence. The foundation of the action was the bill of lading.” If the premise of counsel is admitted, then the conclusion must follow, and no authority in support thereof need be cited. But the complaint repudiates the bill of lading, and denies that it was ever accepted by appellees or ever seen by them until more than thirty days after the
The condition contained in the bill of lading was by reference made a part of the agreement. The point to which the goods were shipped was named in the receipt. To the receipt must be added the conditions of the bill of lading, but matters other than conditions inserted in the bill of lading without appellee’s knowledge did not become part of it. In. order that appellee be charged with notice that the shipment had been made to Preston, actual notice or facts from which such notice could reasonably be inferred should be shown.
It is claimed that there is no evidence of the performance of the terms of the contract on the part of appellees; the condition as to making claim within ten days, heretofore referred to, was rendered invalid by defendant’s conversion of the property. Appellant does not point out any other condition of the contract obligatory upon appellee not shown to have been performed. It is further contended that there is no evidence that appellee gave proper shipping directions. The shipping receipt sufficiently directed that the goods be sent to Gates City.
It is claimed that the verdict is contrary to law, and this claim is based upon the proposition that “the theory of the complaint is and must be that facts are stated showing a cause of action on the bill of lading.” We have heretofore referred to the denial in the complaint that a bill of lading was issued or assented to by appellees. It alleges the shipment under the terms of the receipt, the misdirection of the goods, that, they were turned over to the wrong connecting carrier, that they were lost and destroyed, and that they were and continued to be the property of the appellee. The general verdict found these facts, and there is evidence tending to support such finding.
We’ would not be understood as holding that the mere
The court refused to permit the introduction of the bill of lading. The refusal was upon the ground that it had not been read or assented to by appellee. The shipping receipt directs the shipment to Gates City, Virginia. The defense is that the shipment was made on a bill of lading to Preston, Virginia. The burden is- on the defendant to show that the plaintiff assented to its billing to Preston. Clayton Potts and Albert Potts testified positively that no bill of lading, other than the shipping receipt was ever issued to them or accepted by them, and that they never saw the alleged bill of lading produced.by appellant until it was shown them, attached to tracing papers, after shipment was lost.
It appears from the testimony of the appellees that they were accustomed to call the shipping receipt “our bill of lading.” There is no testimony that the bill of lading was issued to appellee, while it is in evidence that appellee sometimes applied for bills of lading. The practice was not invariable. But this occasional usage can not take the place of nondelivery and acceptance of the bill of lading. Proof of such occasional practice can not overcome positive proof of the nonacceptance of the bill. The place to which the goods were assigned was not a condition in the company’s ordinary bill of lading.
Appellant contends that the admission in evidence of various communications passed between the parties through their attorneys was improper. The objections relative to exhibits numbered 14, 15, 16, 18, 19, 27, 28, 12, and 13 are upon the ground that they were communications be
Appellant argues that the court erred in refusing to give to the jury the instructions 1, 3, 4, 5, 6, 1, 8, 9¿, and 10. These instructions are as follows: “No. 1. The instrument copied in the complaint is not of itself a complete or final contract, for it makes the bill of lading to which it refers a part thereof by reference, and the bill of lading is the controlling part of the contract or agreement between the parties. To entitle the plaintiff to recover in this action it must establish by a preponderance of the evidence that it performed all the conditions, terms, and agreements of the contract on its part, and that the defendant did not perform the conditions, terms, and agreements on its part.” “No. 3. The instrument copied in the complaint, which the witnesses have spoken of as a ‘shipping ticket,’ shows on its face that it was not a final or complete agreement, but was a preliminary agreement. It shows also that it was the agreement of the plaintiff and defendant that a 'bill of lading should be issued to the plaintiff by the defendant, and that, when issued, such bill of lading should embody the
These instructions imply that a bill of lading written and not read or accepted or assented to, and addressed to a place different from that designated by the shipper, is binding upon the consignor. This is not the law. Be
Instructions eleven, thirteen, and fifteen are not based upon the facts as they appear from the record. To point out differences in facts upon which they are based and the facts as shown would extend this opinion to an unreasonable length. Instructions sixteen and eighteen, refused, were covered by instructions seventeen and eighteen and one-half, given. Instructions twenty-one and twenty-two, refused, are substantially covered by instruction nineteen, given. Appellant excepted to the giving of instructions 5, 6, 7, 8, 9, 10, 11, 14, 19, 21, and 23. These instructions, considered in connection with others given, are in harmony with the law as herein held, and in them we find no error for which the judgment of the trial court should be reversed.
We have passed upon the controlling questions discussed, and conclude that the cause was fairly tried, and a correct conclusion reached.
Judgment affirmed.
Black, C. J., Roby, P. J., and Robinson, J., concur. Wiley and Henley, JJ., absent.