178 Ind. 11 | Ind. | 1912
Lead Opinion
This cause went to the jury on the first and third paragraphs of the complaint, the second and fourth having been withdrawn on the trial.
The complaint was originally filed January 4, 1904, and was later amended, and, with the third, filed as an amended complaint October 6, 1906.
The facts of the death of appellee’s decedent April 22, 1903, of appellee’s appointment and qualification as administratrix May 12, 1903, and of appellant being a common carrier, with its line of railroad running through the city of Dunkirk, in Jay county, Indiana, are alleged in each paragraph.
In the first paragraph it is alleged that on or about January 10, 1903, appellee’s decedent, being the owner of certain household furniture, horses and cattle, of the value of $1,000, entered into a written contract with appellant to ship his property from said city of Dunkirk over its line of railroad to the town of Carlisle, in Sullivan county, Indiana, which contract is set out and is in the usual form of bills of lading;
The third paragraph alleges that defendant’s railway line extended from Dunkirk to the town of Carlisle, and that on or about January 5, 1903, decedent entered into the written contract set forth in the first paragraph, counting upon it as a contract of carriage of himself, and that while the car was loaded and on the side-track, and after defendant had been notified that the car was loaded and was ready for transportation, and when defendant knew that decedent was in said car and ready to be carried and transported, de
To each of these paragraphs a demurrer was addressed on account of insufficient facts, and that several causes had been improperly joined. The demurrers were overruled and appellant excepted.
There was answer in general denial, second an answer to that part of the first paragraph which was to recover for injury to decedent’s stock, horses and cattle, because no claim in writing was filed, as required by the contract, setting out its provisions in that particular.
The third paragraph addressed to the third paragraph of the complaint alleges that the right of action originally declared on was for wilful injury, and that the original complaint is set out therein, and that a new and different cause of action is set up in the third paragraph of the complaint, and is barred by the two-year statute of limitations.
The fourth paragraph addressed to the third paragraph of the complaint sets up the failure within thirty days after the happening of the accident, and the accrual of the alleged damages to file a claim therefor, and relies on a clause in
The sufficiency of the first paragraph of the complaint is challenged on the grounds (1) that it seeks to recover for breach of a special contract, and that no breach is alleged, nor compliance or offer to comply with the contract on appellee’s part; (2) that it fails to show any duty or breach of duty necessary to charge actionable negligence; (3) that it is not shown that appellant had received the property for transportation; and (4) that if the paragraph seeks to charge a tort, facts showing actionable negligence are not shown.
The facts alleged clearly show that the property had been received for transportation.
A contract for carriage is shown, also the setting of a car with direction to load, its loading, notice that it was loaded and ready to go forward, and its taking up to be put in the train for transportation. Ohio, etc., R. Co. v. Yohe (1875), 51 Ind. 181, 19 Am. Rep. 727; Evansville, etc., R. Co. v. Keith (1893), 8 Ind. App. 57, 35 N. E. 296; Bennett v. The Guiding Star (1893), 53 Fed. 936; Rogers v. Wheeler (1873), 52 N. Y. 262; Merriam v. Hartford, etc., R. Co. (1850), 20 Conn. 354, 52 Am. Dec. 344; Montgomery, etc., R. Co. v. Kolb & Hardaway (1882), 73 Ala. 396, 49 Am. Rep. 54; Pittsburgh, etc., R. Co. v. Barrett & Walton (1881), 36 Ohio St. 448; St. Louis, etc., R. Co. v. Murphy (1895), 60 Ark. 333, 30 S. W. 419, 46 Am. St. 202; 6 Cyc. 412-415.
As to the first point, it is sufficiently disclosed that there was an undertaking to carry, and acceptance for carriage, and a failure to carry and deliver, and a compliance on the part of the shipper with the things required of him.
Burns 1908, §341 R. S. 1881; Boonville Nat. Bank v. Blakey (1906), 166 Ind. 427, 76 N. E. 529; Brown v. Bern
The contract set out in the complaint as an inducement to the carriage of decedent so as to constitute him a passenger, is a live-stock form of contract on whieh household goods and farming implements were also shipped. The portions of the contract on which appellee relies as constituting a contract of carriage of the decedent in the same car with the live stock and inert property, are identical with those set out in the case of Lake Shore, etc., R. Co. v. Teeters (1906), 166 Ind. 335, 77 N. E. 599, 5 L. R. A. (N. S.) 425, and are, for that reason, not set out, but are here referred to. Under these provisions, without any allegations as to custom or necessity, or direction to decedent to go into the freight-car, but on an allegation of notice that he was in the ear, appellee elaims that decedent had a right to be transported in the car as a passenger.
In Lake Shore, etc., R. Co. v. Teeters, supra, an instructive case, under an identical contract with the one before us, it ^vas, in effect, held, that it could not be said as a matter of
As to the third paragraph of answer, addressed to the third paragraph of complaint, it is asserted in the brief that the original complaint was for wilful injury, and that the cause of action in the third paragraph of amended complaint states a new cause of action, and was not brought within two years of the date of the injury.
The rule and the reasoning for it are the same as in case of an action against a corporation, and its general appearance, or answer of general denial. Adams Express Co. v. Hill (1873), 43 Ind. 157; Ohio Oil Co. v. Detamore (1905), 165 Ind. 243, 247, 73 N. E. 906, and cases cited; Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 451, 78 N. E. 1033, and cases cited; Liening v. Gould (1859), 13 Cal. 598.
The evidence shows an earning capacity of the decedent of from $600 to $800 a year, and that he was an industrious man, and the tables of mortality were therefore properly admitted, and the evidence amply sufficient to sustain the recovery—$2,300.
There was evidence tending to show that the bill of lading, or contract, was issued in duplicate, one copy given to decedent and one retained by appellant. On the trial the original issued to decedent could not be found, and proof was made of that fact by the attorney who last had, and had copied the original for the complaint, and his testimony given that the copy attached to the complaint was a true one, and the copy from the complaint was offered in evidence. Objection was made that there was no evidence that the originals were lost, no effort to produce and procure the copy in the possession of appellant; that a copy could not be introduced in evidence if the original could be had; that the original is in possession of defendant, and there was no evidence of its being lost, no request or demand to produce it was made, and that the copy was not the best evidence. The objection was overruled and exception taken, and reliance is here placed on Newton v. Donnelly (1894), 9 Ind. App. 359, 363, 36 N. E. 769.
To say that when, in course of a trial, it is suddenly discovered that a written instrument necessary to be given in evidence is lost, or cannot be found, and a true copy is present, and that fact is not contradicted, that a trial must be arrested until a notice can be given, and time given for the production of a duplicate in the hands of an adversary, cannot be correct.
A very different rule, and for obvious reasons, would and should obtain, if there be no copy present, or its correctness contradicted.
What we have said as to the third paragraph of complaint disposes of appellant’s proposition, besides the tenth instruction tendered by appellant and given, and instructions five, twelve and thirteen given by the court cover the question fully.
Appellant tendered instructions seventeen and nineteen, which were refused, to the effect that under the third paragraph of complaint there could be no recovery of damages for shortening the life of decedent, and that the tables of mortality, given in evidence, could not be considered for that purpose, and reliance is placed on Richmond Gas Co. v. Baker (1897), 146 Ind. 600, 45 N. E. 1049.
The proposition was fully covered by the eighth and ninth instructions given by the court. The twenty-first instruction requested, goes to the question of no right of recovery for pain and suffering of the decedent, and the instruction verbatim was given in the court’s instruction nine.
Objection was made to nearly all the instructions given, and it will be sufficient to make brief reference to them. As to the first, it is averred that while the facts stated in the instruction as to the first paragraph of complaint show a duty and its breach, the facts stated in the complaint show no duty or breach. No particular is pointed out and we are able to perceive none. Objection to the second instruction is that it ignores the issue of the appointment of appellee as administratrix, and leaves it to the jury to determine whether there had been a waiver of the notice of injury under the contract. As to the first point, we have already adverted, and as to the second, by the third or next instruction the jury was told what conduct would amount to a
Under the rule in Lake Shore, etc., R. Co. v. Teeters, supra, the point is not well taken. It is there said: ‘ ‘ There is absolutely nothing in said contract which assumes to provide where the man in charge shall ride, but by the last clause of the bill of lading reference is made to a consideration based on the ‘ carriage of a person or persons in charge of said stock upon a freight-train.’ ” This contract contains the same provision, and it was held that the question as to whether the person should ride, or whether his riding should be restricted to the caboose was not a question of law permitted by the construction of the contract and that it depended upon the inferences which might be drawn from the evidence in the ease. Illinois Cent. R. Co. v. O’Keefe (1897), 168 Ill. 115, 48 N. E. 294, 39 L. R. A. 148, 61 Am. St. 68, 103, note; Primm v. Haren (1858), 27 Mo. 205; Mantz v. Maguire (1892), 52 Mo. App. 136; Reynolds v. Richards (1850), 14 Pa. St. 205.
Instruction thirteen is complained of as leaving to the jury the determination whether appellant contracted to carry decedent, or accepted him as a passenger, without evi
No reversible error is made to appear, and the judgment is affirmed.
Rehearing
On Petition for Rehearing.
The learned counsel for appellant urgently insists that the court was in error in upholding the admissibility of the bill of lading copied into the complaint, without, as is claimed, laying the ground for its introduction.
Appellant has set up in its answer the same contract, and it was in the record declared and relied on by each party. If appellee had introduced in evidence appellant’s answer containing that copy, it could scarcely be claimed that that was not an admission of the execution of the specific contract. When it was offered as it was, the entire pleadings, including the copy in appellant’s answer, were before the court, and as it Avas for the court to determine its admissibility, the admission by the answer, in Avhich it is alleged that it is a copy, was necessarily an admission of its being a true copy, and the court was bound to take notice from the pleadings, as to whether they were the same.
There is no such fixed rule of evidence, that it may not be varied under any circumstances or conditions. The evidence
It is said by Professor Wigmore (2 Wigmore, Evidence §1231), in discussing the question of “original” and “copy”, that “in order to state the rule then (with respect to their admission) in terms which will indicate in the rule itself what documents are included in its scope, it must be noted that the production required is the production of the document whose contents are to be proved under the issues.” The practical situation in this ease was that both parties were counting on the same contract. So in Carroll v. Peake (1828), 1 Pet. *18, 7 L. Ed. 34, it was held on the'facts that an opponent’s copy of an agreement of lease was an original.
If the duplicates are originals, it is a necessary corollary upon proper proof of destruction or loss of an original, which is primary evidence, that the groundwork is laid for introducing a copy. The rule would, of course, he otherwise if it took different parts to constitute the whole, as in an indenture at common law. Other questions presented are fully covered‘in the original opinioh.
The court was not in error in its holding with respect to the contract, and the petition for a rehearing is denied.
Note.—Reported in 97 N. E. 145 and 98 N. E. 625. See, also, under (1) 6 Cyc. 513; (2) 1913 Cyc. Ann. 404; (3) 31 Cyc. 648; (4) 6 Cyc. 438; 61 Am. St. 89; (5) 6 Cyc. 626; (6) 6 Cyc. 579, 580; (7, 8) 13 Cyc. 343; 17 L. R. A. 71; (9) 2 Cyc. 1014; (10) 2 Cyc. 1013; (11) 6 Cyc. 505; (12) 31 Cyc. 207; (13) 13 Cyc. 375; (14) 17 Cyc. 471; (15) 17 Cyc. 460; (16) 17 Cyc. 564; 12 L. R. A. (N. S.) 343; (17) 17 Cyc. 557; (18) 3 Cyc. 245; (19) 38 Cyc. 1578; (20) 38 Cyc. 1632; 6 Ann. Cas. 799; (21) 13 Cyc. 385; 32 L. R. A. (N. S.) 867; (22) 13 Cyc. 353; (23) 13 Cyc. 385; (24) 38 Cyc. 1711; (25) 6 Cyc. 653; (26) 9 Cyc. 567; (27) 17 Cyc. 517; 12 L. R. A. (N. S.) 343. For notice of loss or injury to goods, required by carrier’s contract as a condition precedent, see 17 L. R. A. (N. S.) 642; as to validity of stipulation in carrier’s contract requiring notice of loss within a specified time, as applied to loss due to carrier’s negligence, see 17 L. R. A. (N. S.) 628.
