190 Iowa 600 | Iowa | 1920
— I. On March 2, 1918, plaintiff delivered to defendant for interstate shipment a hog, declared to be worth $300. Plaintiff alleges that, at delivery, the hog was healthy, and properly crated. The animal was shipped by various connecting’ routes, died en route somewhere in Texas, and was never delivered to the consignee. Plaintiff asserts that the death was due to negligence; and that, by writing, on due consideration, defendant insured safe delivery to the consignee; and that plaintiff has been damaged in $300. There are denials, and, in addition, there are the following affirmative defenses: (a) Defendant denies that it was in any manner responsible for the death of said hog, and avers that same died from disease, or ■cause unknown to defendant, and for which it was in no manner responsible; (b) that, by Section ,5 of the contract between the parties, it was agreed that defendant should not be liable for the conduct or acts of the animal itself, such as biting, kicking, goring, or smothering, nor be liable for loss or damage arising from the condition of the animal, or resulting from its nature or propensities, and that plaintiff assumed the risks from these; (c) that the shipper released and discharged the defendant from all liability for delivery, injuries to or loss of said animal from any. cause whatever, unless such delivery, injury, or loss be caused by the negligence of the defendant, its agents, or employees; and that, though there be such negligence, defendant should be liable only to the extent of the actual damage sustained, and in no event for more than the value of the animal.
, What we have said covers the complaint that the court erred in giving Instruction 1 and Instruction 5, because the animal in question was not classed as “ordinary live stock,” but was one kept for breeding purposes, and the further complaint that Instruction 6 errs because the law specifically permits the common carrier to limit its liability, in the case of an animal kept for breeding purposes.
As just said, that would be material if the plaintiff had obtained a rate upon one valuation, — say, the rates upon ordinary live stock, — and was now attempting to recover on a basis not covered by rates. But here is no such case.
“Q. Does defendant’s Exhibit 2 refer to the shipment of the hog from Marathon to Mt. Calm? (Objected to as not the best evidence. Overruled. Plaintiff excepts.) A. Yes, sir, it is the only waybill I have with reference to that shipment. (Defendant then re-offered Exhibit No. 2, as identified. Same objection as to original offer. Sustained. Defendant excepts.) ”
Since the ruling sustained objection made, it must be upheld, even if the objection stated is not good, unless no good reason for rejecting the testimony can be found in the record. One objection made to it was that it was immaterial and irrelevant. Assume the objection that it was incompetent for want of identification is not well made: these other objections remain. No one can tell from this record whether this ruling was right or wrong. Nothing indicates why the waybill in the possession
“Plaintiff has not shown a right to recover in this case. Plaintiff is not the real party in interest, as disclosed by the contract; that the consignee is not shown to have released any right that he might have for a right to recover for any loss on this shipment; and that plaintiffs do not disclose that they reserved any rights, as between them and the party to this contract, to demand any damages for and on account of the failure of the hog to arrive at his destination, and inasmuch as the contract shows that J. W. Carter is designated as the shipper, he is the only man who has been damaged in this case under this contract. ’ ’
But the errors relied on for reversal make no reference to this point, beyond the blanket complaint that it was error to overrule the motion of defendant to direct verdict “upon the grounds set out in the said motion” (which are distinct and very numerous). No reference whatsoever is made to it in the brief points. No mention thereof is made in the argument in extenso. It is not mentioned in the exceptions to instructions taken before motion for new trial was filed.
We shall not disturb the judgment for lack of standing of the plaintiffs.
If there was error, it does not consist of depriving the defendant of whatever rights said contract provision gave it, but of depriving, it of some contract exemption which the law would not give except on contract.
But immediately following the exemption from propensities, etc., the contract provided that:
If this provision is to be treated as being ejusdem generis,. and merely a blanket cover for injuries due from vicious propensities, etc., then telling the jury to disregard this blanket provision is also harmless. For, on the doctrine of ejusdem generis, this blanket clause is but a repetition of the specific contract provision, and is covered by the explanation that it should be disregarded, because the law gives all that the blanket clause does. But if, on the other hand, this blanket provision is claimed to be something additional, something that does not limit itself to the class of exemptions specifically set forth in the contract, and that it is a blanket release against liability from injuries or loss “from any cause whatever” (and we hold it is not intended to be that), then such stipulation would be void because a violation of public policy. On such construction, it would be an attempt on part of a common carrier to relieve itself from its public duties. The shipper and the carrier do not stand on an equal footing. The shipper must have his goods transported. ■ Usually, he is not in position to employ one public carrier if another one declines to take the shipment, or attaches unreasonable conditions to receiving it. If such blanket
It is' appropriate to say, in passing, 'that we find no exception that so much as intimates that while, as to the things enumerated, the law does give all that the contract does, it was error to instruct that the contract could be disregarded because this contract gave some things which the law did not give. It is just such contentions as this that the legislature had in mind in passing Chapter 24 of the Acts of the 37th General Assembly, and which explains and justifies the construction of that act of assembly found in State v. Gibson, 189 Iowa 1212, and in Anthony v. O ’Brien, 188 Iowa 802.
‘ ‘ Has the defendant proven by a preponderance of the evidence that the death of the hog in controversy was worked by an act of God, the public enemy, or did it result from the disposition, nature, or propensities of the hog itself?”
The jury is told that, if it answer this question in the affirmative, the verdict should be for the defendant, and if it answered in the negative, the verdict should be for the plaintiff. Beyond doubt, it is the law that, where stock is.delivered to the carrier in good condition, and the shipper does not accompany same, and the stock is found in bad condition when it reaches its destination, this proves prima facie a cause of action, and, if not met, authorizes a recovery by plaintiff. Gilbert Bros. v. Chicago, R. I. & P. R. Co., 156 Iowa 440; McCoy v. K. & D. M. R. Co., 44 Iowa 424; Chapin v. Chicago, M. & St. P. R. Co., 79 Iowa 582, 585. When this prima-faeie showing is met, the burden shifts, and it is for the defendant to show that the injury was due to inherent vice or propensities of the animal shipped. Boehl v. Chicago, M. & St. P. R. Co., 44 Minn. 191 (46 N. W. 333); Illinois Cent. R. Co. v. Word, 149 Ky. 229 (147 S. W. 949). This rule rests on the doctrine that, where the shipper does not accompany the shipment, the defendant alone has knowledge, and therefore the duty of using that knowledge in disproof of the prima-facie case made. The rule rests also upon the doctrine that agreements of exemption on account of vice and the like create an exception from liability, a special contract, without which the carrier would be liable as an insurer; and that, if it wishes to save itself by urging the contract exception, it must, therefore, by proof bring itself within the exception. The causes supporting what has just been stated are too numerous to be cited in toto. We select, as to having burden because possession of special knowledge, Cincinnati, N. O. & T.
In Swiney v. American Exp. Co., 144 Iowa 342, 346, it is said of Chapin v. Chicago, M. & St. P. R. Co., 79 Iowa 582, that an instruction involved in that case to the effect that the carrier could exculpate itself from liability for injury to a shipment of live animals by proof of reasonable care on its part, was more favorable to the defendant than it was entitled to. And in Cincinnati, N. O. & T. P. R. Co. v. Greening, (Ky.) 100 S. W. 825, the court said, among other things:
“The evidence is uneontradicted that, when the stock was delivered to the carriers, * * * they were in first class condition ; when they were received by the shipper at Atlanta, Georgia, they were bruised, cut, starved, and otherwise greatly injured. Neither appellee nor any person representing him accompanied the stock. They were in the exclusive care and custody of the carrier from the time they were received until their delivery, and, under circumstances like these, the carrier will not be exonerated from liability merely by introducing its employees to show that it was not guilty of any negligence in the transportation.”
8-a
In this ease, the pleader limited himself to stating a primafaeie case, to wit, delivery in sound condition and failure to deliver to consignee in like condition. Therefore, we have no occasion to consider the cases where, instead of so contenting himself, the plaintiff pleaded specifically: as, for instance, where he declares that specified mishandling caused the injury, or where he asserts that the animal, when delivered to the consignee, was sick of a specified disease. See Swiney v. American Exp. Co., 144 Iowa 342, 344; Winn v. American Exp. Co., 159 Iowa 369, 373; Gilbert Bros. v. Chicago, R. I. & P. R. Co., 156 Iowa 440, 443; Peterson v. Chicago, M. & St. P. R. Co., 19 S. D. 122 (102 N. W. 595); Quinby v. Union Pac. R. Co., 83 Neb. 777 (120 N. W. 453); Allen Co. v. Mobile & O. R. Co., 102 Miss. 35 (58 So. 710); St. Louis & S. F. R. Co. v. Brosius, 47 Tex. Civ. App. 647 (105