173 Ind. 181 | Ind. | 1909
Appellee Clayton IT. Rudy, by special contract in writing, contracted with the Oregon Short Line Rail
Among the many questions presented by the record and discussed by appellant in its brief, is the question of the sufficiency of the second and third paragraphs of the answer and the counterclaim. These pleadings in form are truly exceptional. The introductory part of each paragraph — and they are substantially alike in all their allegations — is as follows: ‘1 The defendants each for himself for a [second or third] paragraph of answer to plaintiff’s amended complaint, and by way of counterclaim alleges: [Then follows a statement of the facts constituting the grounds of counterclaim and answer.] Wherefore, de
No facts are averred in either paragraph of counterclaim showing any right of action whatever in favor of either Montezuma or Parker P. Rudy. Both paragaphs allege that Clayton H. Rudy was the sole owner and shipper of the horses, and his claim to recover damages is predicated upon the injury to the animals in transportation, through the negligence of appellant in discharging its duty as a common carrier in respect thereto. But while the facts pleaded show no grounds of counterclaim in favor of Montezuma and Parker P. Rudy, they do state facts which constitute a complete defense to appellant’s complaint against them severally. The facts stated in these paragraphs of the pleading show that they neither shipped nor owned the horses transported by appellant, and were not in anywise bound to appellant by contract, express or implied, for the freight thereon. These facts could have been proved under the answer of general denial, but that circumstance would not affect the question of the correctness of the ruling of the court on the demurrer to these paragraphs of the answer, if it can be treated as a separate answer of these two parties.
The pleadings are attacked by appellant upon the ground that they are the joint counterclaims of all three of the defendants, and that as neither paragraph states a cause of action in favor of Montezuma or Parker P. Rudy they are bad, and if the premise that they are joint counterclaims is correct, there was manifest error in overruling the demurrer to them.
This pleading is a judicial novelty, in that while it purports to present but one statement of facts, these facts are pleaded by each defendant severally and ostensibly for himself, but for no other apparent purpose than to strengthen the claim of Clayton H. Rudy, and show the nonliability for costs of Montezuma and Parker P. Rudy. It is alleged that the horses were the property of Clayton H. Rudy, shipped by and for him, and accompanied by Montezuma, and that all notices, demands and agreements, that arose and became necessary during the transit, were made by Montezuma for and on behalf of Clayton IT. Rudy; that the damages to the horses, resulting from the negligence complained of, accrued to Clayton IT. Rudy, and the general prayer is that he have judgment for the sum found due him as damages, and the other two have judgment for costs and all proper relief. This form of pleading should not be permitted by the trial court, but its analysis unmistakably shows that, in substance and effect, it is the counterclaim of Clayton H. Rudy, and the argumentative answer in denial of the other two, and, while offensive to every recognized rule of pleading, does not afford a sufficient reason for a reversal of the judgment.
Appellee Clayton II. Rudy’s right of action, set up in his counterclaim for damages done his property through the failure of appellant to perform its obligation as a common carrier, did not in anywise depend, as a condition precedent, on his payment of the freight charges. The right of appellant to sue for the freight, and the right of said appellee to sue for his damages, were independent of each other. Appellant would have no more right to insist that said appellee should pay the freight before he could maintain an action for damages done to his property in carriage than said appellee could insist that appellant pay the damages to the property before it could maintain an action for the freight. The suits would, in each ease, be brought, not for the enforcement of the contract, but for its breach.
The condition in the contract set up in the counterclaim— that a verified written claim for damages should be filed with appellant’s agent within five days from the date of the removal of the stock from the cars — was a valid condition precedent to said appellee’s right to maintain an action for the damages, and a compliance with the condition or its waiver must be shown in the plea. It is averred, however, in the counterclaim, that on the day on which the horses were unloaded from the car appellee Clayton H. Rudy filed his claim with the appellant’s agent at Yorktown for the damages sustained by him on account of
The placing of appellant’s delay or refusal to pay the claim upon grounds other than the unperformed condition with respect to the filing and verification of the claim, was, in legal effect, a relinquishment of its right to claim a forfeiture for noncompliance. Cleveland, etc., Co. v. Heath (1899), 22 Ind. App. 47; 4 Elliott, Railroads (2d ed.), §1514; 5 Thompson, Negligence (2d ed.), §6515. The counterclaim was not, on this account, bad. We think it was good as the separate counterclaim of appellee Clayton TI. Rudy.
The action of the court in overruling appellant’s motion to reject the alleged disclaimer of Montezuma and Parker P. Rudy is urged as a reversible error. We think the ruling was quite proper. The verdict made by the jury was “for all the eounterclaimants for $650,” when there was no averment, prayer or shadow of evidence warranting it. If the verdict should be construed as a verdict in favor of all three of the parties; then the appellant’s motion for a new trial should have been sustained, as the verdict would clearly be contrary to law, and that was one of the reasons assigned in appellant’s motion for a new trial. As before stated, there was no pleading of either Montezuma or Parker P. Rudy in the case, that authorized a verdict in their favor for damages. Neither of them asked for such a verdict in any pleading filed, and a verdict in their favor for damages was contrary to law. They might, if the evidence justified it, have
It is insisted that error was committed in the giving of instruction fifteen, of the court’s own motion, which instruction is in these words: “Railroad companies that undertake to carry freight for hire are insurers of the property they engage to transport under the common law, and in the absence of any valid or binding stipulations in the contract of carriage limiting such common-law liability, they are only exempt from liability for damages to property occurring through the act of God or the public enemy.”
With respect to this charge, by stating the proposition in a more condensed form, the jury, in effect, was instructed that, in the absence of a valid contract limiting its liability, the railroad company was an insurer of the safe delivery of the animals to the consignee, and was liable for all damage that accrued to them in the transportation, that was not caused by the act of God or the public enemy.
The evidence is not in the record, and the giving of this charge to the jury must be held erroneous, if it was improper under all conceivable states of the evidence admissible under the issues. Wenning v. Teeple (1896), 144 Ind. 189, 194; Rapp v. Kester (1890), 125 Ind. 79, 82; Murray v. Fry (1855), 6 Ind. 371, 373.
The rule in such cases is, that if an instruction, within itself, is radically wrong, and liable to direct the minds of the jury to an improper basis for its verdict, it should be condemned.
Broadly stated, it may now be said to be firmly established in this country that when more than one animal is shipped in the same carriage, the carrier, in the absence of negligence, it not liable for injuries inflicted by the animals upon each other in the exercise of their natural habits and propensities. The doctrine rests upon the same principle that exempts the carrier of fresh meats, vegetables and other perishable property from liability for the tainting, rotting and deteriorating of the property during the carriage, from some natural, inherent quality, and without fault on the part of the carrier. 4 Elliott, Railroads (2d ed.), §3546, and cases collected in note; 1 Hutchinson, Carriers (3d ed.), §334; Moore, Carriers, 496; 5 Thompson, Negligence (2d ed.), §6471; Quinby v. Union Pac. R. Co. (1909), 83 Neb. 777, 120 N. W. 453; Foust v. Lee (1909), 138 Mo. App. 722, 119 S. W. 505; Lewis v. Pennsylvania R. Co. (1903), 70 N. J. L. 132, 56 Atl. 128; Evans v. Fitchburg R. Co. (1872), 111 Mass. 142, 15 Am. Rep. 19. Charge fifteen overlooks this principle.
It is not proper to say that a carrier can, by special contract, free himself from a liability that does not and cannot under the law exist. Neither can a special contract, limiting legal liability, in any sense create a liability where none exists without such contract. If then in the transportation of animals there is no liability in the faultless carrier, for self-inflicted damage, instruction fifteen, which is equivalent to a charge that he is liable for all damage, not caused by the act of God or the public enemy, accruing in the shipment, authorizes a recovery for an injury in the shipment for which the carrier is not liable,
Appellee Clayton II. Rudy’s counterclaim shows that, for a reduced tariff and free transportation for an attendant, he agreed, in the shipping contract, to feed, water and care for the animals in transit at his own risk and expense, and assumed all risk of damages which the animals might inflict upon themselves. The counterclaim also shows that one element of damage sued for was that which resulted from the chewing off of the manes and tails of some of the horses by the others — a damage imposed by the natural propensity of the animals, and one that probably might have been prevented by a watchful caretaker. So it is plain that the effect of charge fifteen might have had an important influence upon the verdict, and also have enabled said appellee to recover for his own breach of contract.
The giving of instruction seventeen is also complained of. It reads as follows: “The measure of the damage of the owner and shipper of the horses in controversy, if you shall find that the horses were damaged by the alleged negligence of the plaintiff, is the difference in the value of said horses at Yorktown, Indiana, less any necessary depreciation in value that would ordinarily result from their transportation by freight-train under the conditions then existing at the time they were received by plaintiff for shipment, from Peoria, Illinois, to said Yorktown, and their value at said Yorktown at the time they were delivered.” In relation to this charge, it will be observed that it does not purport to go further than to state the measure of the counterclaimant’s damage, if any, and in this we think it is substantially correct. The nineteenth charge, given by the court, in effect directed the jury that if it found some amount due to the plaintiff railroad company on its claim for freight, and some amount due the counterclaimant as damages to the horses, it should deduct the smaller amount from the larger and return a verdict for the excess
Por error of the court in giving to the jury instruction fifteen, the appeal must be sustained. Judgment reversed and cause remanded, with instructions to grant appellant a new trial.