107 F. 628 | U.S. Circuit Court for the District of Indiana | 1901
The petitioner alleges that Samuel Hunt, by appointment of this court, was receiver operating the Toledo, St. Louis & Kansas City Railroad across the entire state of Indiana, and into the county of Howard, in said state; that he was a common carrier, over said railroad, of passengers and freight; that on July 21, 1900, the petitioner delivered a certain stallion race horse and a certain gelding race horse to E. O. Hopkins, as receiver of the Peoria, Decatur & Evansville Railroad, for shipment from Grayville, 111., to Kokomo, Ind., which last-named station is iu the county of Howard, and on the line of railroad operated by Samuel Hunt, as receiver; that the line of railroad operated by Hopkins, as receiver, was and is a connecting line with the railroad operated by said Hunt, as receiver; that said horses so delivered to Hopkins, as receiver, were consigned to George Schover, at Kokomo; that a certain contract and hill of lading was entered into between said Hopkins, as receiver, and the said petitioner, by the terms of which said Hopkins, receiver, for the sum of $32, agreed to carry said horses, together with other freight, to Kokomo, Ind., by way of the aforesaid railroad and the Toledo, St. Louis & Kansas Oity Line, operated by Hunt, as receiver; that the freight charged for said shipment was prepaid (a copy of the bill of lading or contract is filed with the petition, and is made a part thereof, and marked “Exhibit A”); that by the terms of the contract Hopkins, as receiver, agreed to safely deliver the horses at the point of destination; that the freight, car containing said horses arrived at Kokomo on ike night of July 22, 1900; that Hunt, as receiver, did not safely carry and deliver said race horses to the consignee at Kokomo, as agreed in said contract, but through the negligence and carelessness of said Hunt, as receiver, and his employés and agents, both of said horses were injured and rendered valueless; that upon their arrival at Kokomo the employés of Hunt, as receiver, in order to side-track the car containing the horses, made what is known as a “flying switch,” and in so doing the car containing the horses was thrown violently against another car standing on the track upon which the said car containing the horses was run; that the car containing the horses was crushed in, and the horses were thrown down, torn loose from their fastenings, and
“That said first party shall in no event he liable for said stock in excess of the following agreed valuation, upon which valuation is based the rate charged for transportation of said animals, namely: If stallion or jack, not exceeding $200 each; if horses or mules, not exceeding $50 each.”
“This qualification of the liability of the carrier is reasonable, and is as important as tlie rule which it qualifies. There is no justice in allowing the shipper to he paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight and secure the carriage if there is no loss, and the effect of disregarding the agreement after a, loss is to expose the carrier to a greater risk than the parties intended he should assume. The agreement as to value in this case stands as if the carrier had asked the value of the horses, and had been told by the plaintiff the sum inserted in the contract. The limitation as to value lias no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is hound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of tile contract of transportation, between the parties to that contract. The carrier must respond for negligence up to that value. It'is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should he upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss.”
The doctrine of this case is binding on'this court. But the answer is bad because it undertakes to answer the whole complaint, and fails to state facts sufficient to constitute a complete defense to the whole cause of action. The defendant should have admitted his liability to the extent of $250, and pleaded the contract to relieve himself from liability for damages in excess of that sum. . But, while the answer is bad, the demurrer to it cannot be sustained. A bad answer is good enough for a bad complaint. The complaint
“That no claim for damages which may accrue to said second party [the petitioner] under this contract shall be paid by the said first party, or sued for in any court by the said second party, unless a claim of such loss or damage shall be made in writing, verified by the affidavit of the said second party or his or their agent, and delivered to the general freight agent of the said first party at his office in the city of Evansville, Indiana, within thirty days from' the time said stock is removed from said cars, and that, if any loss or damage occurs upon a line of a connecting carrier, then the carrier shall not be liable, unless a claim be made in like manner and delivered in like time to some proper officer or agent of the carrier on whose line the loss or damage occurs.”
In the complaint there is no allegation that the petitioner made a claim in writing, verified by affidavit, and delivered the same to some proper officer or agent of the receiver, Hunt. Nor does the complaint show any waiver or excuse for a failure so to do. An averment showing the making of the claim under oath, and the delivery of it as required by the contract, is a condition precedent and is necessary to constitute a good cause of action. In the case of Express Co. v. Harris, 51 Ind. 127, it was held that a provision requiring the presentation of a claim in writing at the office of the express company within 30 days was a reasonable requirement, in point of time. The court further said that the claim must be made in such case upon some agent or officer of the company chargeable with the loss. That such* a stipulation is valid has been held in a number of cases cited by the court. See, also, Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Railway Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106. In Case v. Railroad Co., 11 Ind. App. 517, 519, 39 N. E. 426, the court, speaking of a stipulation requiring a claim to be presented in writing within 10 days from the time of the removal of the stock, say:
“Tbat such a provision as we are considering, where reasonable, must-be regarded as a condition precedent, performance of which must be alleged to make the complaint good, was decided in Express Co. v. Harris, 51 Ind. 127, followed by this court in Railroad Co. v. Widman, 9 Ind. App. 190, 36 N. E. 370. To the same effect is Railroad Co. v. Simms, 18 Ill. App. 68.”
In Parill v. Railway Co. (Ind. App.) 55 N. E. 1026, 1031, it is said:
“So where, as here, there is a special contract providing a necessity for reasonable notice of claim, the giving of such notice or the presentation of such claim being a condition precedent, it is a part of the plaintiff’s cause of action to show performance of this precedent obligation on his part, or to show the waiver of performance or of strict formality."
The general doctrine is thus stated in 5 Am. & Eng. Enc. Law (2d Ed.) p. 321:
“The same principles which justify a stipulation fixing the time within which a suit must be brought for a loss of or injury to goods apply to a stipulation requiring the shipper to present his claim in writing within the prescribed time, and such stipulations, where the time fixed is not unreasonable, are uniformly upheld.”
This court knows of no case in which it has been held that a requirement that the claim should, be filed within 30 days from the
It results that the demurrer must be carried back to the intervening petition, and sustained thereto. The intervening petitioner is given leave to file an amended petition 'within 30 days herefrom, and, failing so to do, his intervening petition shall stand dismissed.