121 Minn. 258 | Minn. | 1913
Action to recover $3,820 for the loss by fire of a carload of horses numbering 16 and 8 sets of harnesses. The case was tried to a jury, who returned a verdict for the plaintiff for $3,205.12. The defendant appealed from an order denying a new trial.
The case comes here upon a bill of exceptions, which, according to the trial court’s certificate thereto, contains a complete record of all
The complaint is based squarely upon a breach of the defendant’s •common-law duty as a common carrier in the transportation of the property mentioned, and alleges in substance the plaintiff’s possession •of the horses and harnesses near Willow River, Minnesota, under a -contract of hire with their owner, coupled with a condition that the ■plaintiff was to return them to him at Stillwater, Minnesota; that for •¡the purpose of performing this obligation the plaintiff, in March, 1912, delivered to the defendant, and the defendant as a common carrier received, such property for the purpose of transporting it from Willow River station to the plaintiff at Stillwater for a reasonable compensation; that the defendant failed to transport any of the prop¿rty, but, on the contrary, so conducted itself in regard thereto that it was destroyed by fire while in the defendant’s possession at the station mentioned. No negligence is charged.
The answer admits that the defendant received from one Mattson the carload of horses mentioned, and that the same were consigned to the plaintiff at Stillwater; alleges that Mattson and the defendant entered into a contract for the transportation of the horses, a copy of the same being made a part of the answer; denies the receipt of the harnesses; admits the destruction of the horses by fire; denies that the fire was caused by any act or omission on the defendant’s part, •or that it was due to its negligence; alleges that the destruction of the horses was caused solely by the negligence of the shipper, consignee, and their servants and agents; and denies all other allegations of the •complaint. The reply put in issue all the allegations of the answer. The relevant portions of the contract referred to will be stated later in this opinion.
The plaintiff, during the trial, withdrew his claim for the destruction of the harnesses. To establish the allegations of his complaint he •offered evidence conclusively establishing that prior to the shipment
It also appeared that on the journey to the station one Patient, an ex-employee of the plaintiff, joined Mattson and was permitted by him to ride one of the horses to the town; that when Mattson reached the station he was advised by the defendant’s agent that a car would be spotted for him, and that in the afternoon of the same day he loaded the horses, finishing about 9 p. m., after which he went to the village for lunch; and that about half an hour or more thereafter the ear was discovered to be on fire, and the horses destroyed. Testimony was offered that the value of the horses was $225 each.
On cross-examination Mattson testified that on the afternoon of the same day he signed the contract, a copy of which was attached to the answer; the original being offered in evidence by the defendant and received. There was also evidence tending to show that Patient was at the car while the loading was being done; that he purchased a lantern on the night of the fire, and was then intoxicated; that he had the lighted lantern that night at about 8 or 9 o’clock; and that some one was burned to death in the car. Save as above stated, the record contains no evidence as to the origin of the fire.
Other material evidence was received, bearing upon questions other
At common law the defendant was an insurer of the property, and in the absence of an express contract, leaving out of account the question of contributory negligence, the plaintiff was entitled as a matter of law to recover the value of the property destroyed without proving negligence on the part of the defendant; and even if there was an express contract, which we now assume as above stated, no duty devolved upon the plaintiff to plead it, it being his right and privilege to do just what he did — that is, to base his action upon the defendant’s common-law liability and leave it to the defendant to allege any special contract attempting to limit its liability. It is true that the cases are in conflict upon this proposition; but the later and in our opinion the better considered cases, decided under the more liberal modern practice, sustain the view announced. In 6 Cyc. 514, it is stated that “the better rule is that the special contract containing conditions in favor of the carrier is properly a defensive weapon, to be used by the
“We are aware that the decisions on this question are somewhat at variance, but believe the better rule to be that the existence of a special contract for the shipment of live stock, with stipulations therein exempting the carrier from certain liabilities, is no obstacle to the maintenance of an action in tort, based upon the violations of the carrier’s common-law liabilities, and that the plaintiff has an election to bring his action on the contract or in tort for damages arising from a violation of the carrier’s duties.”
To the same effect, see Southern v. Webb, 143 Ala. 304, 39 South. 262, 111 Am. St. 45, 5 Ann. Cas. 97. This conclusion is in logical accord with the - proposition stated in the next subdivision of this opinion, and indeed this court has already practically aligned itself with those adhering to the rule as above stated. See Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Ins. Co. 64 Minn. 61, 66, 66 N. W. 132.
It may be contended that the introduction of, the special contract in evidence before the plaintiff had rested changed the rule, or rather rendered it inapplicable. No such result followed, however, as this was done by the defendant, and the plaintiff, during the. entire trial, based his claim to a recovery solely upon the common-law 'liability. This distinction is clearly pointed out in Johnson v. West Jersey, 78 N. J. L. 529, 74 Atl. 496, 138 Am. St. 625, 20 Ann. Cas. 228.
• The only evidence disclosed by the record as to the origin of the fire was that above recited concerning the man Patient and his conduct, and this we think was manifestly insufficient to require the court to submit to the jury the question of whether the defendant had sustained the burden upon it to establish the absence of negligence on its part. Furthermore, the evidence in question seems to have been offered upon the issue of contributory negligence, which was submitted to the jury,, and of which we will treat in its place. But if it may be claimed that the conclusions above stated are erroneous, the same result must nevertheless follow, for the settled case shows that most of the evidence relative to the cause of the fire and responsibility therefor is not contained therein. Error is never presumed, and what this evidence was we know not.
We hold therefore, that the verdict cannot be disturbed on the ground that the instructions allowed a recovery without proof of negligence. A new trial should never be granted in a civil action for errors in instructions, however egregious they may be, where the verdict was the only one warranted by the law applicable to the case. 2 Dunnell, Minn. Dig. § 7170.
Previously to the execution of the contract there was no conversation between Mattson and the defendant’s agent concerning the kind or value of the horses to be shipped; nor was there any talk about, freight rates, tariffs, or charges to be made for the transportation, and nothing was said about any other paper or contract. According to the testimony of the agent, his only thought seems to have been to-secure the execution of a contract covering the shipment, and there-was nothing even in the nature of a meeting of minds upon the particular contract here involved. The agent testified that he requested Mattson to come into the station and fix out the contract — not a contract— and that when he came in he (thé agent) prepared the contract and said, “You know what this is for; you got to get release to ride-with them;” and that Mattson replied, “I know all about it; I signed good many of them;” and on cross-examination the agent admitted having said to Mattson that he would have “to release the stock in order to go with the stock.” It is clear, also, that Mattson’s purpose in executing the contract was to secure the right to accompany the stock. There was, in short, a total absence of the usual conversation necessarily had between parties preliminary to the execution of a, written contract, and of consensus concerning the subject-matter.
It is true that a meeting of minds is usually presumed from the execution of a written instrument, but here all the surrounding facts and circumstances speak to the contrary, and the question
“The alleged contract is an attempt by a common carrier to limit its common-law liability for the loss of the goods. Such contracts are exceptions to the common-law rule of liability, and they should be carefully scrutinized by the courts, and only enforced when it is made to appear that they are just and reasonable, and were fairly entered into by the shipper, with full freedom of choice. It is the settled doctrine of this court that contracts so made, if fair, just, and reasonable, will be upheld as a proper mode of securing a due proportion between the amount for which the carrier may be responsible and the freight charges he receives, and of protecting himself from extravagant valuation in case of loss; but a mere arbitrary valuation, simply for the purpose of limiting the carrier’s liability, will not be sustained as just and reasonable within the rule.”
If the circumstances surrounding the execution of the contract here involved required the court to submit to the jury the question of whether it was fair, just, and reasonable, and for the purpose of securing a due proportion between the amount of the carrier’s liability and the compensation to be received for the carriage, then the court was plainly in error in refusing to submit such question to the jury; but if, on the other hand, it appears that under the facts such was not the case, that the contract ivas not fairly entered into with freedom of choice, that the valuation was' arbitrary and plainly for the purpose of limiting the carrier’s liability, and all this to such extent that if the question had been submitted, and the jury had found to the contrary, the verdict could not have been sustained, then the defendant cannot now complain of the failure to submit. This is the general test of the propriety of refusing to submit questions of fact to the jury, and when it is applied to the facts of this case there can be, we think, but one result, and that is that, under the rule announced
From the defendant’s brief we gather that it was claimed on the •trial that the evidence warranted a finding that Mattson allowed a drunken friend to go into the car for the purpose of stealing a ride, and that such act was the proximate cause of the. plaintiff’s loss. The burden of proof to establish this was upon the defendant, and it is very doubtful whether the record contains sufficient evidence to warrant any such conclusion. However, evidently on this theory, the •court, at the defendant’s request, instructed the jury that “if Mattson knowingly permitted anyone to go into the car for the purpose of •stealing a ride, or while loading negligently allowed anyone to go into the car for that purpose,'and the car was set on fire and the horses -destroyed by reason of Mattson’s doing so, your verdict must be for the defendant.” This would seem fairly to cover the defendant’s theory in this regard in any event.
The defendant also' assigns error upon the failure to give the following instruction requested by it: “You are instructed that, according
We are of the opinion that the instructions given fairly covered the one requested, especially in view of the special interrogatory and the verdict thereon. We find no reversible error upon the issue of contributory negligence, in which connection, furthermore, it must be remembered that the record affirmatively shows that most of the evidence relative to the cause of the fire and responsibility therefor has-been omitted.
Order affirmed.