47 Ind. App. 371 | Ind. Ct. App. | 1910
— Appellees, as partners, sued appellants, Cleveland, Cincinnati, Chicago and St. Louis Railway Company, referred to in the briefs as the Big Pour company, which name we shall use for brevity, and the Wabash Railroad Company. Bert J. Bartlett also was made a defendant, but the verdict and judgment were in his favor, and he is not a party here. The complaint was in five paragraphs. Appellants have assigned errors separately; the Big Pour company assigning the overruling of its separate and several demurrer to the first, second, third and fifth paragraphs of
The first paragraph, after introductory averments, alleged that on and prior to November 7, 1905, the Big Pour company owned and operated a railroad from Middleton, Ohio, to Danville, Illinois, and the Wabash company owned a railroad from the latter place to Huntington, Indiana; that on that day appellees delivered to the Big Pour company at Middleton, for carriage to Huntington, one soda fountain complete, the property of appellees, and directed the Big Pour company to ship it to Huntington, over the roads of the Cincinnati, Hamilton and Dayton Railroad Company and the Erie Railroad Company; that the Big Pour company accepted said property for carriage, and agreed carefully to transport said property to Huntington, “over the lines of said roads, as above specified,” for which appellees agreed to pay, and did pay the Big Pour company, $6.30; that the Big Four company caused the property to be loaded on its cars, but instead of transporting it over the lines as directed, it transported the property to Danville, Illinois, and there delivered it to the Wabash company, which transported it to Huntington, which arrangement and carriage were pursuant to a private contract between the companies, and each received a portion of the money so paid by appellees. It is alleged that the soda fountain was securely cased in a wooden box; that the address was plainly printed on the top of the box, and the character of the package was clearly indicated by the label placed on the top of the box, bearing the words “Soda Fountain;” that it is customary in packages of that kind to place the name and address of the consignee on the top of a package, which indicates the side which should be kept up in teansportation; that when the package was so delivered for transportation it was in good condition, but defendants negligently and carelessly
‘ ‘When the forwarding agent is instructed as to the wishes of his principal, and elects to disregard them, he is guilty of a plain breach of duty. When he sends goods in a mode
By a statute in force April 15, 1905 (Acts 1905 p. 58, §3918 et seq. Burns 1908) it is provided, that in all actions against common carriers on account of the failure by such carriers safely to transport and deliver property received by them, it shall be sufficient for the shipper, or person entitled to maintain such action, to aver and prove, in the first instance, the delivery to and receipt by the carrier of such property for transportation to a point named, together with the failure of the carrier so to transport or deliver, and the resulting damage, and any limitation by contract of the common-law liability of such carrier is hereby made matter of defense, which shall be specifically set up by answer, and which shall not be provable under a general denial. Such affirmative answer, it is provided, shall state facts showing that the contract counted upon is based upon a sufficient consideration, that it is reasonable, that it was fairly entered into by the shipper after he had been given a bona fide and full opportunity to ship at a fair and reasonable rate without limitation of liability, and a reply of general denial shall be
The second paragraph contains all the averments required by this statute as against each appellant.
The third paragraph was sufficient under the statute as ag'ainst the Big Pour company. It was alleged therein that on November 7, 1905, appellees deBvered to that company at Middleton, for carriage and transportation to Huntington, a soda fountain, which belonged to appellees, and directed that company to transport it and deliver it to said appellees at Huntington; that it was in good condition; that the Big Pour company received and accepted it for transportation to the last-named place; that it failed safely to carry, transport and deliver it to appellees at that place; that when it delivered the property to appellees at that place, it was completely ruined; that by reason of the failure of that company safely to transport the fountain, appellees were damaged, etc.
The fourth paragraph was sufficient under the statute as against the "Wabash company. After preliminary averments it was alleged that the Wabash company owned and operated a railroad from Danville to Huntington; that appellees delivered to it at Danville for carriage to Huntington a soda fountain; that it was received and accepted by that company for transportation to Huntington; that it was in good condition; that the Wabash company failed safely to carry, transport and deliver it to appellees, but delivered it to them in a broken and ruined condition; that, by reason of the failure of that company safely to transport and deliver the fountain as aforesaid, appellees were damaged, etc.
In the case of Chicago, etc., R. Co. v. Woodward (1905), 164 Ind. 360 (a case decided upon the law as it existed before the enactment prescribing a rule of pleading and also of proof), it was said on page 364: “The overwhelming weight of authority now holds to the doctrine that, in the absence of statutory or charter disability, a common carrier may contract for the safe carriage and delivery of property at a destination beyond its own line, and render itself liable for loss, injury or delay on the line of another carrier, over which a part of the transportation is performed. In such instances the second becomes the agent of the first carrier. ’ ’
The second and third instructions, given at the request of appellees, consisted of a recital of the provisions of the statute of 1905, supra, and by the fourth instruction of the same series the jury were told that “no affirmative answer has been filed by either of the defendants in this case, setting up any special contract limiting the liability of the common carrier as fixed by the common law, and therefore no special contract or limitation of the common-law liability of common carriers is available as a defense.” By another in
As before remarked, the fifth paragraph of complaint was withdrawn, and there was no evidence of the diversion from a prescribed route alleged in the first paragraph.
Therefore, though there be a special contract to transport to a place named, it is sufficient for the shipper to aver in his complaint, and to prove on the trial, where there is no defense but the general denial, the delivery to and receipt by the carrier of such property “for transportation” to a point named, together with the “failure” of the carrier so to
This instruction was erroneous, in that it required the special contract limiting the liability of the carrier to be in writing. A verbal contract is as obligatory for such purpose as a written one, unless there be a statute requiring it to be in writing, though it may be more difficult to prove it. Hutchinson, Carriers (2d ed.) §242; 4 Elliott, Railroads (2d ed.) §1503. We are not advised that there is such a statute in this State.
However, no such oral contract modifying the common-law obligation was in issue or proved or offered in evidence, and we are of the opinion that appellants suffered no injury from this instruction.
Other objections are urged by appellants in connection
We find no available error. Judgment affirmed.