172 Ind. 466 | Ind. | 1909
This action was brought by appellee against appellant to recover damages for an alleged breach of its common-law duty safely to carry and to deliver a carload of sheep. The first paragraph alleged a contract to carry to
The errors assigned and not waived call in question the conclusion of law and the action of the court in sustaining appellee’s demurrer to the second and fourth paragraphs of answer.
The second paragraph of the answer set out at length a written contract between appellant and appellee for the transportation of appellee’s sheep, which limited appellant’s common-law liability, and alleged that said contract was the sole and only contract for the transportation of said sheep. The fourth paragraph of answer was substantially the same as the second. It is insisted by appellant that the action of the court in sustaining the demurrers to the second and fourth paragraphs of answer was erroneous, for the reason that the act of 1905 (Acts 1905, p. 58, §§3918-3920 Burns 1908), entitled “An act relative to the liability of common carriers and prescribing the practice and procedure and fixing the burden of proof in certain cases,” is in violation of that part of article 4, §22, of the Constitution of this State, which forbids the enactment of local or special laws “regulating the practice in courts of justice,” and therefore void, and for the further reason that it is in violation of the 14th amendment to the Constitution of the United States.
It is evident from said findings that any demand of appellee that appellant carry said sheep under the common-law liability would have been unavailing, because there was no one authorized to make such a contract on behalf of appellant, and therefore, under the authorities before cited, appellee’s assent to the contract limiting the common-law liability of appellant did not bind him. In such case, under the authorities cited, appellee had the right to disregard the contract limiting the liability of appellant, because he was not bound thereby and had the right to sue for the breach of the common-law duty. Lake Erie, etc., R. Co. v. Holland, supra. This was the rule before the taking effect of the act of 1905, supra.
As the special findings show that appellee was not bound by the contract limiting the common-law liability of appellant, it was liable for a breach of its common-law duty. The court did not err, therefore, in its conclusion of law.
Judgment affirmed.