104 Ind. 490 | Ind. | 1886
The following is the only portion of appellees’ complaint that needs to be here set out, viz.: “ The plaintiffs complain of the defendant and say, that the defendant is a railroad corporation operating a line of railroad between Battle Ground City, in said county, and the city of ■Chicago, in the State of Illinois, and that at and before the time hereinafter named, said defendant held out to the general public, and caused to be known, that it was a.common carrier of freight, stock and cattle, from said Battle Ground and. other stations on the line of said railroad between said Bat-
Following these averments are the further allegations that, by reason of such refusal, appellees were compelled to drive their cattle to another station on the line of appellant’s road; that they were shipped from that station on the next day, and hence did not reach Chicago on the morning of the 17th of August. It is further averred, that the driving of the ■cattle to the second station necessitated the expenditure of
One of the errors assigned here is, that the court below erred in overruling appellant’s demurrer to the complaint.
Appellees’ theory is, that the gravamen of the action is-the failure of .the company to maintain and keep in repair proper ways and means for loading the cattle into the cars. If that theory should be adopted, we think the complaint would be insufficient. There is no charge that the railway company had not constructed such means and ways, nor that, as constructed, they were not proper and suitable. What is averred of them is more in the way of recital than of a positive averment of facts. But, regarding it as the averment of facts, it amounts to no more than that the ways and means for loading were out of repair. The word “ maintain,” used as a verb, does not mean to provide or construct, but, as defined by lexicographers, means to keep up, to keep from change, to preserve. Worcester’s Dictionary. To hold or keep in any particular state or condition, to keep up. Webster’s Dictionary.
.In the case of Moon v. Durden, 2 Exchequer R. 21, it was said: “ The verb ‘ to maintain,’ in pleading, has a distinct technical signification. It signifies to support what has already been brought into existence.”
The extent to which the ways and means for loading the cattle were out of repair is not stated in the complaint, nor is there any averment that they were so out of repair that the cattle might not have been loaded; and hence, as’ we have said, if the failure to keep in repair be regarded as the gravamen of the action, the complaint is insufficient, and the demurrer should have' been sustained.
Regardless of any theory of counsel in the conduct of the trial and in the construction of the complaint, we must pass upon it as it comes before us. The proper construction of'
It is argued by counsel for appellant, that the complaint is bad, because there are no averments that appellees delivered, or offered to deliver, the cattle to appellant. The averments are not very specific, but we think they are .sufficient to withstand. the demurrer.
It is averred that the railway company “ agreed * * to receive and ship said cattle”; that appellees “delivered said cattle, * * * according to the terms of said understanding, at the stock-yards of the defendant at Battle Ground,” and that “ the defendant, * * * after the cattle had been * * * placed in said yards, refused to ship said cattle from said Battle Ground station.”
It is not averred in specific terms, that appellees delivered, or-offered to deliver, the cattle to appellant, nor that appellant agreed to receive them at its stock-yards. The averments create a strong inference that such was the agreement, and that the cattle were so delivered, but inference, of course, can not take the place of, nor suffice for, allegations in pleadings. It is averred, however, that the cattle were placed in appellant’s stock-yards at Battle Ground, and that after this was done appellant refused to “ ship ” them.
The word “ ship,” as here used, is not an appropriate word, but in .the connection in which it is used it was meant to be, and undei1 our liberal rules of pleading may be regarded as, the equivalent of to receive and carry.
The-refusal, under the circumstances, we think, relieved appellees from the necessity of making any further delivery, or
It was assigned as causes for a new trial, that the verdict is not sustained by sufficient evidence, and is contrary to law.
It is well settled that the plaintiff must recover secundum, allegata et probata, or not at all. He can not declare upon one theory and recover upon another. Boardman v. Griffin, 52 Ind. 101; Hays v. Carr, 83 Ind. 275; Thomas v. Dale, 86 Ind. 435; Lake Shore, etc., R. W. Co. v. Bennett, 89 Ind. 457; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Brown v. Will, 103 Ind. 71; Hasselman v. Carroll, 102 Ind. 153.
The substance of the evidence in behalf of appellees is as follows: Appellees having notified appellant’s agent at Battle Ground, some days in advance, that they wished a car in which to ship their cattle to Chicago, the agent told them that the train would leave Battle Ground in the evening and get to Chicago at eight o’clock the next morning. In compliance with appellees’ request, a car was put upon the side-track opposite the chute leading from the cattle-pen. After they had put their cattle in the pen at Battle Ground, apj)ellant’s agent at that place told them that they could not load their cattle, because the chute was broken down, and refused to assist them in repairing it. Appellees, and another who was assisting them in the management of their cattle, fixed the chute by placing cord-wood under it. They got it fixed, so that the cattle could be loaded, some two hours and more before the arrival of the train that was to take the car. It was the custom of shippers at that station, including appellees, to car their own live-stock. About two hours after the chute was fixed, appellees commenced loading their cattle. When the train arrived fifteen head of the cattle were in the ear. The other two became frightened at the train, escaped from the cattle-pen and ran away. They jumped over the fence of the cattle-pen at a place where a board was missing. There was also evidence tending to show that the fence around the cat-
It is shown by the testimony of appellees’ witness, also,, that the train waited from twenty to thirty minutes after the’ cattle' escaped. There is no evidence that appellees requested-that the car, with the fifteen cattle, should be forwarded by that train, nor that appellant’s servants declined or refused', to so forward it. On the other hand, it is apparent that appellees did not demand that it should be so forwarded, from the' fact that their idea was to hold the train until the escaped cattle should also be in the car.
The testimony of appellant’s witnesses is, that the train was held forty minutes in order that appellees might get their cattle loaded.
From this summary of the evidence, it is very plain that appellant did not refuse to receive and carry the cattle in the sense in which a refusal is alleged in the complaint; indeed, there is no evidence of any refusal, either to accept or to carry. The providing of the car and the holding of the train showed a willingness both to receive and carry the cattle. The evidence shows no wrong on the part of the railway company, unless it be a failure to construct and keep in repair a proper fence around the cattle-pen, and a failure to keep the chute in proper repair. We express no opinion as to the weight of the evidence upon these points, nor as to whether or not appellees suffered any loss by reason of the chute being out of repair.
It is sufficient to say that the case made by the evidence is not the case .made in the complaint, and that for that reason the judgment must be reversed.
A refusal to receive and to carry the cattle can not be pred
If appellant was guilty of any actionable wrong in relation to the cattle-pen and the chute, which occasioned loss to appellees without their fault, which we do not decide, that is the wrong for which it should respond in damages. That, however, is not the wrong charged in the complaint. The conclusion we have reached makes it unnecessary for us to consider other questions discussed by counsel.
The judgment is reversed, with costs, and the cause remanded, with instructions to the court below to sustain appellant’s motion for a new trial, and to grant leave to' appellees to amend their complaint if they so .desire.