94 Iowa 202 | Iowa | 1895
This action was brought against the Chicago, St. Paul & Kansas City Railway Company, as owner, and the Chicago Great Western Railway Company, as lessee, of a line of railroad in this state, to recover damages for negligently and carelessly operating one of its trains so that some live stock being carried over the road was injured. The defendant, in its-answer, first made a general denial, and next pleaded a written contract which contained a stipulation limiting. its liability for injuries to horses to one hundred dollars per head, and a further stipulation that the company should not be held liable for loss or damage to property under shipment unless claim therefor was made in writing upon one of its agents within thirty days from the date of the contract, and alleged that no written notice or claim was at any time made. The plaintiff, in reply, pleaded “that this defendant charges in his answer herein filed ‘that they are not liable to plaintiff for live stock for more than $100 per head, and that this carrier is not to be held liable for loss or damage to property under this shipment unless claim thereof is made in writing upon one of its agents, within thirty days from the above date;’ that the above conditions set out in said contract are void, are not in accord with the law of the state of Iowa; that they are opposed1 to public policy and are void.” Evidence was adduced on the issues thus presented, and the cause was fully
The sole question presented is; did the court err in the construction it put upon the pleadings. It is quite clear that he did. Indeed, it is doubtful if the reply, in. itself, tendered any issue but one of law. It does not set forth facts which avoid the matter alleged in the answer, but pleads conclusions of law. It neither admits nor denies the matter pleaded in answer, and, unless it be treated as a demurrer, it was a sham and redundant. However, it is evident that the court below did not treat it as raising an issue of law, but rather one of fact, and held that in effect it admitted the truth of the mattere pleaded in the answer. That there was no express admission is conceded, and the only one which can be implied is the colorable one necessary to sustain a plea of confession and avoidance. We have expressly held that such an admission does not affect the general denial interposed by operation of law to the matters pleaded in answer; that it is only overcome by an express admission in the reply. Day v. Insurance Co., 75 Iowa, 694; Meadows v. Insurance Co., 62 Iowa, 387.
Other questions are discussed by counsel, but we do not think they are properly raised, or that they are controlling, and we must decline to consider them. The judgment of the district court is affirmed.