Rogness v. Northern Pacific Ry. Co.

196 P. 989 | Mont. | 1921

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

This action was commenced to recover damages to a shipment of two carloads of cattle from Silesia, Montana, to Chicago, Illinois. Judgment was entered for plaintiff. Motion for new trial was made and overruled. Appeal is from the judgment and order overruling the motion.

The cause of action is based upon alleged negligence of the defendant in rough handling of the shipment, unreasonably slow movement in transportation, failure to furnish reasonable facilities for unloading, feeding, watering and resting the cattle from time to time while in transit, and in using dogs of vicious character and disposition in driving the cattle from the yards into the cars. Prior to trial defendant made request of plaintiff for a bill of particulars, which request was as follows:

“To the Above-named Plaintiff and to John G-. Skinner, Attorney for Plaintiff:

“Please furnish the defendant at once a bill of particulars covering the points hereinafter mentioned: 1. The place or places at or between which defendant, or the connecting carrier, delayed the transportation of said cattle several hours, beyond the lapse of a reasonable time, as alleged in the complaint. 2. The place or places at which defendant, or the connecting carrier, failed to afford reasonable means or opportunity for unloading, feeding, watering and resting said cattle, as alleged in -the complaint. 3. The place or places at or between which the defendant, or the connecting carrier, kept and confined said cattle on the cars for great, unusual and unnecessary and unreasonable periods of time, without feed, water or rest, or means or opportunity of securing the same, as alleged in the complaint. 4. The place or places at or between which defendant, or the connecting carrier, did not use reasonable or ordinary care in and about the handling, care and transportation of said cattle, while the same were actually in transit, as alleged in the complaint. 5. The place or places at which the defendant, or the connecting carrier, started or stopped the train carrying said cattle with great and unnecessary suddenness and violence, thereby throwing said cattle from their feet to the floors of the cars and piling them upon one another in the ends of the cars, as alleged in the complaint. Please confine bill of particulars to the freight divisions or particular places regarding which you propose to offer evidence, so that we will not be required to produce witnesses to cover the run over freight divisions, if any, on which or to explain the handling of the stock at places at which you do not intend to produce witnesses to show negligence.

“Dated this 7th day of July, 1916.

“R. G. Wiggenhorn,

“Gunn, Rasch & Hale,

“Attorneys for Defendant.”

In response to the demand plaintiff served and filed a bill of particulars as follows:

“To the Above-named Defendant, to R. G. Wiggenhorn, Esq., and to Messrs. Gunn, Rasch & Hall, Attorneys for Defendant :

“In response to the request for a bill of particulars served some time ago in the above-entitled action, the plaintiff expects to prove the following: 1. That plaintiff shipped two ears of cattle from Silesia, Montana, oil January 12, their destination being Chicago, Illinois; that the cattle should have arrived for Monday’s market, January 17, but did in fact arrive for Tuesday’s market, January 18. The delay at Billings, Montana, was about four hours—it is not customary or usual to stop at Billings, Montana, for more than a few minutes, if at all, on cattle shipments; that there was some delay at Sunnyside and also at South St. Paul, and a further delay in the yards at Chicago. The delays, however, were slight, but the total delay was sufficient so that the cattle did not arrive for Monday’s market. 2. That at Sunnyside the yardman or man in charge of the yards, where the cattle were unloaded for feeding, used five dogs for dogging the cattle out of the yards and into the ears. This is unusual and while the plaintiff has been a shipper over, the Northern Pacific for a number of years and over other roads, he has never known of dogs being used to drive cattle in the stockyards and into cars. That by reason of said dogs being used the cattle were frightened, overheated and overdriven and five head thereof were injured and bruised. 3. That at several places during the nights on the trip from Silesia to Chicago, the defendant did not use ordinary care in transporting the cattle, but started and stopped the cars suddenly and with great force. It is difficult for plaintiff to tell just the stations where the cattle were shook up and thrown against the side of ears, by "reason of rough handling, except at Billings and near Sunnyside. 4. The plaintiff will also show that the market declined fifteen cents per cwt. by reason of the delay—that Monday’s market was at least fifteen cents higher than Tuesday’s market. 5. Plaintiff will also show that the company’s agent at Chicago was notified before the cattle were mingled with other stock. 6. That by reason of the rough handling and delay and dogging of said cattle, said cattle shrunk about seventy-fiVe pounds per head more than they ordinarily would have shrunk under ordinary circumstances, and the condition of the cattle was rough and stale. 7. The plaintiff does not intend to offer any testimony on the rough handling of the cattle, except at Billings and .Sunnyside and during the nights, as it is difficult to show the exact places and the testimony will be general on this question.

“Dated this 18th day of November, A. D. 1916.

“John G. Skinner,

“Attorney for Plaintiff.”

The first seven specifications of error involve the admission [1] by the court, over objection of defendant, of certain evidence relative to watering conditions and ice on the ground in the yard at Sunnyside and feeding conditions at South St. Paul. The evidence as to the ice was admissible as bearing on the charge that the cattle were dogged, it appearing that, while being so dogged, the cattle went upon the ice, slipped and fell. The objection to the evidence as to feeding and watering conditions was that the bill of particulars above mentioned made no reference to those matters, and therefore plaintiff was precluded from giving evidence of such conditions. We are satisfied that under the complaint, plaintiff was entitled to offer evidence upon these subjects, and the only question is whether or not the bill of particulars so restricts the proof that plaintiff could not offer in evidence any testimony whatever as to any matters not specifically mentioned in the bill of particulars, even though covered in the complaint.

The rule is well established that when a bill of particulars [2-5] has been ordered or requested and is furnished in compliance with such order or request, the party so furnishing it is limited in his proof to the matters covered by such bill of particulars. (31 Cyc. 570; Flaherty v. Butte Elec. Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 Pac. 416.) It is contended by plaintiff that under the Code practice of this state a bill of particulars cannot be demanded or ordered in actions of this kind. However, we are satisfied that it is within the power of the court, in the exereisé of a sound discretion, to order bills of particulars in such cases. (Bogard v. Illinois Central Ry., 116 Ky. 429, 76 S. W. 170, 3 Ann. Cas. 160; with exhaustive note.) In this case, no order was made by the court, but the defendant requested a bill of particulars merely as to the places at which plaintiff claimed the, alleged acts of negligence took place and gave as a reason therefor that the defendant might know upon what division the alleged acts of negligence took place so that it might be prepared to meet the issues involved as to such places without being obliged to bring witnesses from divisions on which there was no complaint. Under the request, defendant was not entitled to receive a bill of particulars as to any items not mentioned in its request, and the bill of particulars should not'be construed any broader than the request therefor. The reference to some items not in-eluded within the request was purely voluntary on plaintiff’s part; thus all matters alleged in such bill of particulars not required by defendant were merely surplusage and immaterial. (Clarle v. Ford, 41 Ill. App. 199.) Inasmuch as the evidence in question was admissible under the allegations of the complaint and the bill of particulars was furnished to meet a definite request not affecting such evidence, the court did not err in overruling the objections of the defendant. It is also significant in this connection that at the time his evidence was offered, defendant did not claim any surprise nor any inability to meet those issues; in its motion for new trial it did not claim that it had been surprised in this regard, was unable to meet the issues, or that it had witnesses which it could have produced, but did not produce because of any expectation that no evidence would be introduced upon those subjects; nor did it allege that upon a new trial it would be in any better position to meet those issues than it was upon the trial that had been had. The conclusion is irresistible that the contention of defendant is technical and that defendant was not misled to its prejudice by the failure of the bill of particulars to mention such matters. “The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.” (Rev. Codes, see. 6593.)

Error is alleged in the ruling of the court sustaining objection [6] to the introduction of a carbon copy of the livestock contract upon which it is alleged that the shipment was made. Objection was interposed on the ground that the instrument offered' in evidence was not the original contract and no foundation was laid for secondary evidence of the same. In its answer defendant alleges that the shipment in question moved under a certain livestock contract containing certain, limitations of the liability of the carrier. The allegations of the answer respecting this contract were denied by reply. The burden, therefore, rested upon defendant to prove the contract by. competent evidence. The testimony shows that the contract upon.which the shipment moved was made in duplicate, a carbon being placed between two forms of the contract and both contracts being made at the same time, as is usual in making carbon copies. It happened, however, that the station agent, in the use of his carbon, failed to place the carbon over the blank for signature of the shipper on the under sheet, so that when the shipper signed the original contract, no impression was made of his signature upon the carbon copy. Such being the case, the carbon copy did not become an original contract, as is usual when two complete and identical instruments are made at the same time by the use of carbon paper. After the train had left the station, the station agent wrote in the shipper’s name in the blank space for signature on the carbon copy. When the copy was shown to plaintiff, he denied the signature and did not admit that the substance was the same as the original contract on which the shipment moved. It further appears from the evidence that the original contract was returned to defendant company ’ and was, at the time of trial, on file with its passenger department. The rule as to the proof of written instruments is clearly set forth in section 7941 of the Revised Codes, which reads as follows: “The original writing must be produced and proved, except as provided in this Part. If it has been lost, proof of the loss must first be made before evidence can be given of its contents. Upon such proof being made, together with proof of the due execution of the writing, its contents may be proved by a copy, or by a recital of its contents, in some authentic document, or by the recollection of a witness, as hereinbefore provided.” Under the statutory rule, there was no sufficient foundation laid for introduction of the unsigned carbon copy, and the obligation rested upon defendant to produce the original contract in its possession. There was no error in the ruling of the court in this respect.

Objection was made to the refusal of the court to give to [7] the jury the following offered instruction: “You are instrueted that the defendant is not liable for delays, if any, unless the same were due to its negligence, and if you find that delays, if any, were due to cold weather or other action of the elements, then the defendant is not liable for any damage to said stock caused by such delays as you may find were due solely to the weather.” At the time the shipment in question moved, the weather was extremely cold. Defendant offered expert evidence to show that in extremely cold weather considerable difficulty is experienced in operating trains. However, no evidence was introduced showing that in this particular instance the movement of the train was delayed in any way by reason of the weather conditions then prevailing. On the contrary, the witnesses for defendant insisted that the time consumed in the transportation was the usual and ordinary time for such movement. Under these circumstances the instruction was not applicable to the evidence. Furthermore, it appears that even though the instruction had been applicable, defendant had no cause for complaint, for the reason that another instruction was given which fully covers the matters contained in this offered instruction.

Defendant in its brief argued other matters in regard to [8] which it is contended that error was committed in the trial. However, there is no specification of error in respect to such matters, and, under the rule which has been laid down by this court in a large number of cases, to the effect that no alleged errors shall be considered unless contained in the specifications of error, this court is not in a position to consider the argument so made. (Toole v. Weirick, 39 Mont. 359, 133 Am. St. Rep. 576, 102 Pac. 590; Rehberg v. Greiser, 24 Mont. 487, 62 Pac. 820, 63 Pac. 41; Schilling v. Curran, 30 Mont. 370, 76 Pac. 998; Murray v. Montana L. & M. Co., 25 Mont. 14, 63 Pac. 719; In re Murphy’s Estate, 43 Mont. 353, Ann Cas. 1912C, 380, 116 Pac. 1004; Lehane v. Butte Electric Ry. Co., 37 Mont. 564, 97 Pac. 1038; Dorais v. Doll, 33 Mont. 314, 83 Pac. 884; Patterson v. Pfouts, 25 Mont. 163, 64 Pac. 222; Babcock v. Caldwell, 22 Mont. 460, 56 Pac. 1081.)

It is true that" defendant has made a general specification [9] that the court erred in denying defendant’s motion for a new trial. While it is customary to specify errors as to the ruling of the court in denying a motion for a new- trial such as herein specified, yet under the practice and rules of this court such specification is of no avail to raise any issue whatever. It is like a specification wherein it is alleged that the court erred in entering judgment. Bach of such specifications is so broad that it does not point out any particular error and does not advise the court of any legal question involved. If such was not the rule, then the appellant could raise any number or any kind of questions that he may desire, even including objections to the admissibility of evidence, by merely alleging that the court erred in overruling motion for new trial, or that the court erred in entering judgment. The mere fact that on a motion for a new trial several grounds are usually specified as a basis of the motion does not change the principle. If the trial court erred in overruling and denying defendant’s motion for a new trial, upon what ground did it err? Which ground specified in the notice of intention is relied upon? The only satisfactory method of answering these questions is to require that the specification of errors must particularly indicate the error relied upon. It should be so definite that there can be no doubt as to the precise legal point involved. For these reasons a general assignment that the court erred in overruling motion for new trial, or in entering judgment, is insufficient to raise any issue

The judgment and order are affirmed.

!'Affirmed.

Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.