189 Ind. 262 | Ind. | 1920
Appellees shipped by appellant’s railroad a consignment of live stock consisting of hogs and cattle from Owensville, Indiana, to Fletcher Commission Company, at Indianapolis, Indiana, to be sold on commission. When the carload of stock arrived at its destination seven of the hogs were dead and one was crippled. This suit was brought by appellees, in the Gibson Circuit Court, to recover damages for the loss sustained by appellees. The complaint was in two paragraphs.
The first paragraph alleged in substance that on April 26, 1915, plaintiffs delivered, and defendant accepted, the stock for transportation at Owensville, Indiana; that seven of the hogs were killed in transit by the negligence of the carriers; that said stock was delivered at its destination on April 27, 1915; that on April 29, 1915, the plaintiffs presented a claim in proper form, in all respects conforming to the requirements of the statute, for the amount of $111.62; that defendant made no request on plaintiffs for any papers issued by defendant or by any other carrier, and that said defendant did not, within ninety days after receiving said claim, either pay or reject the same in whole or in part.
The second paragraph of the complaint alleged in substance that on April 26, 1915, appellees delivered to appellant at Owensville, Indiana, certain hogs and cattle, all alive and in good and sound condition, to be safely transported to the Fletcher Commission Company, at Indianapolis, Indiana; that appellant and his connecting carrier failed' to safely carry and
To each paragraph of complaint appellant filed an answer in general denial. Appellant filed a special paragraph of answer directed to the first paragraph of complaint. To this special paragraph of answer
The substantial averments of said amended fourth paragraph were that the railroad company, as such, in 1913 had filed with the Public Service Commission of Indiana classifications of freight rates and schedules for charges and including the form of contract above referred to, and the appellant, and his then co-receiver, had accepted the same. The answer set out contained rules embodied in said above-named schedules, classifications and rates, and averred that appellant executed said contract with appellees, whereby a lower rate was charged, in consideration whereof appellees accepted said contract in lieu of a uniform bill of lading at a higher rate, and without limitation of the carrier’s common-law liability; that appellees were given a bona fide opportunity to ship at a fair and reasonable rate, under the uniform bill of lading, without limitation of common-law liability, but they elected to ship under said live stock contract, and under the limitations therein named; that such contract was reasonable, fairly entered into, and after the opportunity to ship at a fair and reasonable rate, without limitation of liability, had been given; that it was provided in said contract, among other things, that appellant should not be liable for overloading, escape, or wild and unruly animals, death from fright, heat, or suffocation; and charging that the loss complained of was due to heat and suffocation produced
The fifth paragraph of answer sets forth the same facts as to the classification and rates, and opportunity to ship at another rate, without limitation of common-law liability, and under the uniform bill of lading, but that appellees elected to ship under said contract, which was reasonable and fairly entered into, after the opportunity to ship under the uniform bill of lading had been given them; and further states that'the contract of shipment provided that, if appellees intended to make any claim for loss or damage to the shipment, they would give notice thereof before the stock was sold or mingled with other stock, and before it was removed from the place of destination, and that a failure so to do should bar any recovery for loss or damage and that appellees failed to give such notice.
The sixth paragraph of answer contained the same general averments as the fifth, omitting any reference to the provision of the contract as to notice of claim, and states that said contract contained the provision that no suit or action for the recovery of any claim for loss or .damage should be maintainable unless such suit or action was begun within ninety days next after the cause of action accrued, and the answer charges that more than ninety days elapsed after the cause of action accrued and before the bringing of the action. It also avers that the contract was reasonable, fairly entered into, after opportunity had been given to ship under the uniform bill of lading, at a higher rate, and without limitation of common-law liability.
To these affirmative ■ answers appellees replied by
Appellant claims that instruction Nos. 8 and 10 are inconsistent and calculated to mislead the jury as to the law applicable to the issues formed-on the second paragraph of complaint; that the jury may have inferred that these instructions were given as bearing on the issues joined on the first paragraph of complaint; that instruction No. 10 left to the jury the question of the reasonableness of the contract. It will be observed that the defense in this case is based on the claim that the appellees accepted what appellant terms a live stock contract for the shipment of the stock upon which the loss occurred, and that said contract contained a limitation of the .common-law liability of the carrier, and in consideration for accepting such contract appellees were given a lower rate for such shipment.
Section 3920 Burns 1914, Acts 1905 p. 58, §3, provides that: “A reply of a general denial shall be sufficient to close the issue. And the issue thus farmed shall be tried as other issues of fact are tried.”
The evidence shows that the stock was shipped on April 26, 1915, and delivered at its destination- on April 27, 1915, and on April 29, 1915, appellees presented their claim for the loss sued on to appellant, who took the claim under consideration and for investigation, and on August 4,1915, rejected the claim on other grounds. At the time the defendant rejected the claim on the grounds set forth in the letter of his freight agent, more than ninety days had elapsed since the accrual of the action, yet the claim was not rejected on that ground. Sections 3919, 3920 Burns 1914, supra, upon which the defense in this action rests, require that the affirmative answers shall state facts showing that the contract counted upon is based upon 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
We find no error in the record. Judgment affirmed.