20 Ind. App. 605 | Ind. Ct. App. | 1898
This action was commenced by the appellee against the appellant as a common carrier for damages sustained by the appellee on account of the failure of the appellant to transport safely and deliver certain household goods and wearing apparel the property of the appellee. The complaint is in substance'as follows: That on the 28th day of November, 1896, the defendant (the appellant), was a common carrier of goods for hire from Dwight, Illinois, to Lowell, Indiana, and on said day at Dwight, Illinois, by its agent, then and there in writing agreed, in consideration of the sum of $4.4-5 then and there to be paid by appellee to said agent, to carry safely and promptly for appellee and to deliver to her at Lowell, Indiana, certain household goods and clothing, a copy of which said agreement is filed with the complaint and made a part thereof, and that the plaintiff then and there delivered to the appellant for that purpose the certain goods aforesaid; that appellant did not safely carry and deliver said goods as aforesaid, but
To this complaint appellant answered in two paragraphs. The first paragraph was a general denial. The second paragraph of answer admits that on or about the middle of September, 1896, appellee’s husband shipped his household goods, furniture and wearing apparel from the State of Indiana, to the town of Dwight, state of Illinois, and that on or about the 26th day of November, 1896, the appellee’s husband caused said goods to be reshipped from said town of Dwight to Lowell, Indiana, over appellant’s road, but appellant says that shortly after said goods were delivered at appellant’s freight depot at Dwight, and after the same had been loaded into the car, a creditor of appellee’s husband caused said property to be attached in said town by a writ duly issued by a duly authorized court of said state. A copy of the complaint, affidavit, bond, notice, and writ is attached to and made a part of the answer, together with a certified copy of the judgment in said court It is further averred that the officer so serving said writ took possession of all of said property, and kept and retained possession thereof, and prevented the appellant from shipping said goods, as appellant otherwise would have done had said writ not been served and said goods attached. It is further averred that the appellant could not ship said goods because the officer having full control of said goods refused to permit the defendant to ship the same to said appellee, and that as
The appellee replied to the second paragraph of appellant’s answer denying each and every material allegation therein set forth. U.pon the issues thus formed there was a trial by the court, and at the request of appellant, the court made a special finding of facts which was in the following words: “The court having been requested by both the plaintiff and defendant in the above entitled cause to make a-special finding herein, together with its conclusions of law thereon, finds the facts as follows: That plaintiff commenced this action to recover from the defendant, by way of damages for loss of certain goods described in a bill of particulars filed with her complaint, which goods were to be shipped by her husband for her from Dwight, in the state of Illinois, over the defendant’s railroad to Lowell, Indiana; that
The only error argued by appellant, and which is presented by the record in this cause, is that the court erred in its conclusions of law on the special findings. Appellant having excepted to the conclusions of law upon the special finding of facts admits the truth of the facts as found by the court. We believe it to be the settled law in this State that a seizure under legal process will excuse the common carrier from delivering goods entrusted to his care for shipment. Ohio, etc., R. W. Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727. The case last cited covers every point in controversy in this cause, and while the facts are somewhat different in the two cases, the governing principle of law is the same in both cases.
In the case of Stiles v. Davis, 1 Black (U. S.) 101, the goods were seized by a sheriff under a writ of attachment against a third party, and taken from the carrier, and the action was brought by the consignee upon the bill of lading, as in this case. In the opinion the Supreme Court of the United States say: “After the seizure of the goods by the sheriff, under the attachment, they were in the custody of the law, and the defendant could not comply with the demand of the plaintiffs without a breach of it, even admitting the goods to have been, at the time, in his actual possession. The case, however, shows that they were in the possession of the sheriff’s officer or agent, and continued there until disposed of under the judgment upon the attachment. It is true, that these goods had been delivered to the defendant, as carriers, by the plaintiffs, to be conveyed by them to the place of destination, and were seized under an attachment against third persons; but this circumstance did not impair the legal effect of the seizure or custody of the
It was said by Downey, J., in delivering the opinion of the Supreme Court of Indiana, in the case of Ohio, etc., R. W. Co. v. Yohe, supra, “The question presented is this, is a common Carrier of goods excused from liability for not carrying and delivering the goods, when they are, without any act, fault, or connivance on his part, seized, by virtue of legal process, and taken out of his possession? It is impossible for the carrier to deliver the goods to the consignee, when they have been seized by legal process and taken out of his possession. The carrier cannot stop, when goods are offered him for carriage, to investigate the question as to their ownership. Nor do we think he is bound, when the goods are so taken out of his possession, to follow them up, and be at the trouble and expense of asserting.the claim thereto of the party to or for whom he undertook to carry them. We do not think.it material what the form of the process may be. In every case the carrier must yield to the authority of legal process. After the seizure of the goods by the officers, by virtue of the process, they are in the custody of the law, and the carrier cannot comply with his contract without a resistance of the process and a violation of the law. The right of the sheriff to hold the goods involved questions which could only be determined by the tribunal which issued the process or some other competent tribunal, and the carrier had no power to decide them. If the goods were wrong
In the case at bar it is found by the court that on the 29th day of November, 1896, while the said appellee’s goods were in appellant’s care, ready for shipment, they were attached, seized and levied upon by virtue of a writ of attachment duly issued from a justice’s court, and that from the time they were thus seized by the constable up to the time the goods were reshipped and including the time in which a part of
The lotver court erred in its conclusions of law upon the special finding of facts. The cause is for such reason reversed, with instructions to the lower court to restate its conclusions of law and render judgment in favor of appellant.