Skinner v. Chicago & Rock Island Railroad

12 Iowa 191 | Iowa | 1861

Wright, J.

Plaintiff claims to be the owner, and entitled to the present possession of the books. The ownership is not in controversy. And though plaintiff may aver that he is entitled to the immediate possession of the property, and though defendants may not deny in terms this averment, yet if from the whole answer it appears that the possession is rightfully in them, it will be good. A plaintiff may aver in his petition this right, and yet state such other facts as clearly show that the right is in another. If so, the facts stated will be held to control the general averment or conclusion stated by the pleader, and the petition would be bad. So, while a defendant is held as admitting matters in the petition not denied, this denial is not to extend to conclusions found upon facts stated. Nor is the pleader required to deny the petition in its very words. If he states facts which under the law would defeat the plaintiff’s action, the assumption that plaintiff is entitled to recover because there is no denial of the facts alleged by him, is not tenable.

In this case the plaintiff, as was his duty, undertakes' to state “ the facts constituting the alleged cause of detention ” of the property in controversy. (Clause 5, § 8558, Rev. 1860.) Briefly stated, that cause was: that he believed the goods to be damaged, and would not sign a receipt acknowledging that they were received in good order, until he had an opportunity to examine the same; that because he would not do this, they were refused him. The answer denies that the goods were- damaged; denies that plaintiff so claimed at the time he applied for them; avers that they were tendered to him upon condition that he sign the receipt usual upon such delivery; and then follows a negation of the cause of detention in the very words of the petition.

The plaintiff in stating the alleged cause of detention, has certainly not employed the most appropriate language. The answer is in this respect equally defective, but when taken in connection with the other matters stated, is not assailable by demurrer. The answer being true, as admitted by the demurrer, the goods were not damaged; the plaintiff did not so claim at the time; he had permission to take them upon signing the receipt, and an opportunity to examine them was not denied him. If the goods were not damaged, we entertain no doubt of the right of the company to exact the receipt before delivering the same. Before paying freight or executing the receipt, it was equally the right of the plaintiff, if he desired, to examine the cargo. This examination should be made, unless otherwise allowed, at the place of delivery and before its removal. The right to exact such receipt is upon the principle, that in view of the nature of their business, their duties and liabilities, they may establish such rules and regulations as may conduce to the convenience and safety of themselves, and of the public. Of course, such rules, must be reasonable, and lawful. And we can certainly conceive of no more reasonable rule, nor one thac would tend more to the necessary protection and convenience of a company engaged in the business of common carriers, than that which requires a receipt upon the delivery of a carg'o. They have transactions with hundreds of persons, perhaps every day, are constantly delivering packages of greater or less value, and to say that they might not by the action of the board of directors, or that of the officer having charge of that particular branch of the business, make such a regulation, would take from them a power necessary for their own protection, and the exercise of which could not reasonably injure any one. (5 Am. L. Reg. 364. Manhew v. M. & M. R. R. Co.)

The question under the demurrer is, not whether a part of the answer presents a defense to plaintiff’s action, but whether taken all together it is assailable. If the defense had been stated in divisions, or if the answer bad set up several distinct grounds of defense, then any one of these divisions might have been attacked by demurrer, and a part held good, and others bad. In this case, however, the answer does no more than take issue upon the matters really in controversy between the parties, and being so, we can not understand upon what principle it can be held defective. (Rev. § 2880, and notes.)

Affirmed.