McMillan v. American Express Co.

123 Iowa 236 | Iowa | 1904

Deemer, C. J.

i. assignment of error. With tbe exception of tbe first, tbe assignments of error are all omnibus in character, and fail to point out tbe exact error complained of. Section 413 6 of tbe Code provides that “no question shall be considered by tbe Supreme Court unless pointed out by an assignment of error, which * * * must clearly and specifically indicate tbe very error complained of, and, among several points made in * * * motion, instructions or rulings, tbe one, dr those relied upon, must be separately stated.” We have so many times construed this section that it is useless to cite all tbe cases where it has been involved. They will be found in tbe annotations to tbe Code and in tbe supplement of 1902. But see Huss v. R. R., 113 Iowa, 343; Fitch v. R. R., 116 Iowa, 716; Faivre v. Manderchied, 117 Iowa, 724; Nordine v. Rosengreen, (Iowa), 89 N. W. Rep. 103 (not officially reported).

2 Evidence: liability. 3 L«v of state^re- ■ sumPtlonThe one assignment which is sufficient challenges a ruling made in the introduction of evidence. It seems thac plaintiff purchased the cow from one Beraner, .who, it appears, was the agent of the defendant company at Waldron, Ind., the place where the animal wag ¿e]jyere¿ for shipment. As agent both for the express company and of the jilaintiff, he undertook to enter into a contract between them for the carriage of the animal by the defendant company. Some question was made as to his authority to act for both parties. Defendant to make out one of the issues tendered by it relating to limitation of*liability by contract, produced a witness who it appears was an agent of the defendant at the Central Station of the Illinois Central Railway Depot in Chicago, 111., and asked him this question: “I want to ask you what is the custom of the company in issuing contracts for the transportation of live stock?” This was objected to as immaterial, and the objection was sustained. We do not find that this matter is argued in appellant’s brief, but, if it had been, there was no error in the ruling. It is not competent by proof of usage or custom to impose a limitation of liability not provided for in .the contract of shipment itself. Nor will a general custom or usage on the part of the carrier to issue bills of lading containing stipulations limiting liability be sufficient to show that in a particular case in which no such contract was executed the shipper is bound thereby. This is familiar doctrine. See Ills. Central Co. v. Smyser, 38 Ill. 354 (87 Am. Dec. 301); McMillan v. Mich. So. R. R., 16 Mich. 79 (93 Am. Dec. 208); Farmers’ Bank v. Champlain, 18 Vt. 131. Moreover, even if the ruling was erroneous, it was without prejudice, for under our decisions the limitations found in the bill of lading actually issued in this case were void. Lucas v. R. R., 112 Iowa, 594; Grieve v. R. R., 104 Iowa, 659; Solan v. R. R., 95 Iowa, 260. The law of Indiana, the place where the contract was made, by which it must be interpreted, in the absence of proof to the contrary, is presumed to be the same as our own. g0 bhat in no event was there any prejudice in the ruling. The law on this subject relating to railway companies is applicable to express companies. See Code, section 2165.

It is possible that one of the assignments relating to misconduct of plaintiffs attorney in arguing the case to the jury is also sufficient. Treating it as such for the purpose of the case, we do not think there was such misconduct as to justify a reversal. Almost the exact point here made was decided adversely to appellant in Wimber v. Iowa Central R. R. Co., 114 Iowa, 551.

None of the many other questions argued by appellant can be considered, for the" reason that they are not properly-presented by a sufficient assignment of error.

There being no prejudicial error of which defendant may justly complain, the judgment must be and it is aeeirmed.