20 Ind. App. 594 | Ind. Ct. App. | 1898
This was an action by appellee, plaintiff below, against the appellant, upon a bill of lading, to recover the price of goods destroyed whilst in the hands of appellant as a common carrier. The complaint was in two paragraphs. The first paragraph, in substance, alleged that plaintiff’s consignor delivered 1200 pounds of white lead to defendant at Cincinnati, to be carried to Madison; that a bill of lading was issued therefor; and that defendant failed and refused to deliver the white lead. The second paragraph, in substance, alleged delivery of the white lead to defendant at Cincinnati, by plaintiff’s consignor; the issuance of a bill of lading therefor, which Avas conditioned for carriage to Madison on the steamboat Sherley, and excepted liability for loss from fire; but that the white lead was transferred to the steamboat Carrollton, whereby it was destroyed by the burning of that boat.
The defendant answered in four paragraphs. The
The rulings of the lower court, sustaining the several demurrers to the second, third, and fourth paragraphs of the answer, are assigned as error. Counsel for appellant in their able brief argue and contend for four propositions of law: First, “the custom and
The execution of the bill of lading, made a part of the complaint, is admitted. Different definitions of the commercial instrument so called have been given by different courts, and jurists. As restricted to transportation by water, a bill of lading may be said to be a written acknowledgment, signed by the master of a vessel, that he has received the goods therein described from the shipper, to be transported on the terms therein expressed, to a described place or destination, and there to be delivered to the consignee or the parties therein designated. 4 Am. and Eng. Enc. of Law 509. By the terms of the contract under which appellants received the goods, it was agreed to transport them on the steamer Sherley. Evidence of the usage and custom of trade is admissible in mercantile contracts to prove that the words in which they are ex
In Green, etc., Navigation Co. v. Marshall, 48 Ind. 596, certain goods were shipped on the steamer Evansville, at Calhoun, Kentucky, to be delivered at Anderson. Landing, in Tennessee. In answer to an action for the loss of goods, the defendant admits making the bill of lading; that she brought the goods to Evansville, Indiana, said steamer being employed in running between the city of Evansville, Indiana, and Bowling Green, Kentucky, and never going further down the Ohio river than Evansville, which was well known to the plaintiff at the time he shipped the goods, and plaintiff well knowing that said goods would' be reshipped at Evansville upon some other boat, to be carried to their destination. That the goods were reshipped on board the staunch steamer Norman, to Anderson Landing in Tennessee; that she proceeded on her voyage, but, upon reaching her destination, was unable to find a consignee, and returned with said goods to Evansville, Indiana, and deposited them upon the wharf-boat until such time as the owner could be communicated with, and while there, the goods were destroyed by fire without the fault or negligence of
The case of Cow v. Foscue, 37 Ala. 505, reported in 79 Am. Dec. 69, was an action by the appellee against the appellants as common carriers, to recover for the loss of two bales of cotton, shipped by plaintiff on board of defendants’ steamboat Eliza Battle and never delivered at the port of destination. Defendants pleaded that the cotton was lost by “dangers of the river and by fire,” within the meaning of an exception in the bill of lading. The Eliza Battle, on her voyage down the river, ran aground, and, in order to lighten her, plaintiff’s cotton was put on another of defendants’ boats. The Eliza Battle, after being thus lightened, continued down the river without taking back any part of her cargo. The boat to which the cotton was removed afterwards ran aground, and was lightened in like manner by transferring a part of her cargo to a third boat of defendants. This third boat
The parties having agreed to ship on the steamer Sherley, they made their contract contrary to the alleged custom. Said steamer not being in port that day, appellant might have refused to receive them.
The averment that the goods would have been destroyed if left on the wharf-boat because that part of the wharf-boat where they would have been stored was destroyed by the same fire that destroyed the steamer Carrollton, is a conclusion and does not make the averment good. It states no fact showing a necessity for storing them in that part of the boat, nor any facts to show that they might not have been removed before reached by the fire. A deviation from the voyage renders the carrier responsible for all losses even from unavoidable casualty; for under such circumstances the loss is traced back through all the intermediate causes to the departure from duty. Crosby v. Fitch, 12 Conn. 410; Hand v. Baynes, 4 Whart. 204;
The third proposition for which appellant’s counsel contend, is that the delivery by plaintiff’s agent of the goods to Brashear, clerk of the steamer Carroll-ton, with a bill of lading filled out by appellee’s agent in which was inserted the name of the steamer Sherley, was a rescission of that clause of the contract providing for carriage by the Sherley and the making of a new contract for carriage by the Carrollton. There is no averment in this paragraph that Brashear was not the agent of the defendant company to receive goods for the steamer Sherley. It does not meet the allegations of the complaint that the goods were received by the clerk of the defendant company to be carried by the steamer Sherley. It should have contained these averments. The answer was defective upon this if not upon other grounds.
The fourth paragraph of answer presents 'the question of waiver, involved in the fourth proposition laid down by appellee’s counsel. This paragraph contains the averment that appellee’s agent delivered the goods to the steamer Carrollton with a bill of lading conditioned for their shipment on the steamer Sherley. Counsel for appellant contends that by this act of appellee’s agent, the condition of carriage „by the steamer Sherley was waived. It is also alleged in said paragraph that appellee instructed his agent at Cincinnati to ship the lead by the Sherley; that said agent delivered it with a bill of lading for said steamer to the Carrollton. It avers that the steamer Carrollton received it and placed it on board of said steamer Carrollton — received said bill of lading, made a copy of the same and delivered said copy to plaintiff’s agent. It thus appears from this paragraph that
The demurrer was properly sustained. While reported cases differ as to what facts under given circumstances constitute a deviation, the rule, we think, must be accepted as established by the great weight of authorities that the written contract for carriage is not subject to modification or variance by the custom or usage of trade. WTe cite as instructive upon this proposition, in addition to cases heretofore referred to, Van Camp Packing Co. v. Hartman, 126 Ind. 177; Scott v. Hartley, 126 Ind. 239; Brown v. Foster, 113 Mass. 136.
We would not be understood as deciding that a shipper not prejudiced by a deviation would be entitled to recover for such deviation. If in the case before us it should appear that the loss must certainly have occurred from the same cause without fault of defendant corporation if there had been no deviation from the contract, then the carrier should be excused. The burden of proving this fact would be upon the carrier. In reference to this defense which is attempted to be set up, we simply hold that the allegations do not make this showing; that the allegations amount only to a conclusion, and do not state facts from which the court can determine that the result would certainly have been the same There is no error. Affirmed.