Thomson v. Chicago, Milwaukee & St. Paul Railway Co.

195 Wis. 78 | Wis. | 1928

Rosenberry, J.

The complaint in this case is set out in full although no question respecting its form or sufficiency is raised. A number of recent cases, among which is Lukken v. Hanover Fire Ins. Co. 194 Wis. 569, 217 N. W. 404 (decided January 10, 1928), indicate that there is a good deal of confusion in the minds of lawyers as to the proper form of complaint under sec. 260.11, Stats., which provides:

“A plaintiff■ may join as defendants persons against whom the right to relief is alleged to exist in the alternative, although recovery against one may be inconsistent with recovery against the other.”

We regard the complaint in this case as a model pleading under that section. After stating the facts and setting forth the claim' of each defendant, the complaint proceeds: “Plaintiff is in doubt and is unable to determine whether the matters set forth in the claim of the respective companies are true and correct,” and alleges that they are joined as defendants in the action for the reason that the right of the plaintiff to relief exists in the alternative against them. The prayer for judgment is likewise in the alternative. While pleadings should be liberally construed and no litigant having a cause of action should be sent out of court, carefully prepared lawyerlike pleadings are nevertheless a great aid to the administration of justice. The amount of un-lawyerlike, sloppy, inaccurate pleadings that finds its way into courts of justice is disheartening, and indicates either an unbelievable lack of training and ability or an utter indifference and disregard by attorneys of the most elementary and fundamental principles of pleading. Liberalized pleadings may become a hindrance rather than an aid to the attainment of justice. We are moved to make these observations by the difficulties which we have in ascertaining the claims of parties as set out in their pleadings. In a case decided herewith, where no comment is made in reference thereto, the cause of action set out in the complaint was entirely abandoned and recovery was had upon a wholly different legal theory without regard to pleadings. While the issues were in fact litigated, a better result would have been obtained if the pleadings had disclosed in the first instance the claims of the respective parties.

The principal question raised here by the Hunter Machinery Company is this: it claims that the car as loaded by it was accepted by the railway company, and that by such acceptance any liability which the Hunter Machinery Company had by reason of its failure properly to load the drag line passed to the railway company and the Hunter Met-chmery Company was discharged. This contention is based upon the well established rule that where a shipper tenders to a carrier goods for transportation which are insufficiently crated, boxed, packed, or loaded, and such insufficiency is discoverable by the carrier upon ordinary observation and inspection, it is the duty of the carrier to refuse to receive the goods, and that if the carrier does accept the goods it may not thereafter allege that any injury which they sustained in the course of transportation was due to such insufficient crating, boxing, packing, or loading. The rule is otherwise where the insufficiency is not disclosed by ordinary observation and inspection. It is established in this case that the drag line was not properly loaded in that the corners of the superstructure were not stayed either by rods or wires so as to prevent it from swinging upon the base; and that the damage sustained by its collision with a passenger train of the defendant railway company was due to the fact that by reason of such lack of stays the superstructure swung over so as to come in contact with a moving train on another track. It further appears without dispute that the car was removed from the yards without inspection by the defendant’s employees. This was due to an error on the part of those charged with the movement of the car. While the defendant Hunter Machinery Company was in form the consignor, there can be no dispute, and there is none, that it acted in that regard for the seller, John F. Connell Company. It is not denied that it was the duty of the Hunter Machinery Company under its contract to load the drag line so that it might be safely carried under ordinary conditions of transportation from Milwaukee to Omaha. It is found that it failed to perform its contract in that regard. The plaintiff begins this action as assignee of the John F. Con-nell Company and sues as such assignee for a breach of the contract entered into by the defendant Hunter Machinery Company to properly load the drag line. The argument made here on behalf of the Hunter Machinery 'Company ignores the fact that its liability to the plaintiff as assignee of the John F. Connell Company is contractual in its nature, and that it is in no way discharged from its contractual duty because the railway company failed to perform the duty of properly inspecting the car in question before it was put in the course of transportation. The Hunter Machinery Company did not undertake to load the car so that it would be accepted by the railway company, but to load it properly. Whether or not the Connell Company as shipper would have had a cause of action against the defendant because of damages sustained to the goods in transit, and that in such an action the railway company would be estopped to set up the fact that the drag line was insecurely and improperly loaded, it appearing that such improper and insecure loading was apparent upon ordinary observation and inspection of the car, is beside the mark. Certainly the Hunter Machinery Company was not discharged from its contractual duty by the failure of the railway company to perform its duty as a common carrier, or because the railway company, as between it and the Connell Company, might be estopped to allege that the goods were improperly and insecurely loaded. The argument presses the rule of law contended for entirely too far, and we find no cases, and we are cited to none, which hold that a party to a contract is relieved of his contractual duty by such a circumstance. We must hold that upon its main contentiofi the Hunter Machinery Company cannot prevail.

Certain other errors are assigned by the Hunter Machinery Company which we do not find it necessary to discuss at much length. Among other errors assigned is that the Hunter Machinery Company was not upon the trial permitted to show that the defendant railway company was in the habit of making flying switches, which subject cars and the goods with which they are loaded to unusual and unreasonable ■ stress and strain. Without holding or in any way intimating that such evidence is competent in a case like this, it appears without dispute that movements of the car upon which the drag line was loaded were shown in detail from the time it left the yards to the time it reached the place where the damage occurred, and that at no time was such car a part of a flying-switch movement, so that any mere inference that might be drawn from the habitual conduct of the railway company was wholly and conclusively rebutted.

It is further urged that the .verdict is excessive because the drag line in question was sold f. o. b. Milwaukee for $5,000 by the Hunter Machinery Company to the John F. Connell Company. There was evidence received as to the reasonable value of the property, but the argument made by the Hunter Machinery Company is that the contract made by it to the Connell Company is controlling. Just why the price fixed in the contract made by the Hunter Machinery Company and John F. Connell Company under date of July 31, 1924, should control rather than the selling price named in the contract between John F. Connell Company and the plaintiff under date of July 29, 1924, we are unable to see. We think all of the evidence as to- value was properly admitted and that the question was one for the jury and that there is ample evidence to support its finding.

The contention made that the court improperly received evidence as to the damage done the engine and mail car of the defendant railway company by coming in contact with the superstructure of the drag line is without merit. While it is true as argued that verdicts must rest upon evidencé and not upon mere conjecture, the evidence in this case amply supports the verdict.

We have examined other assignments and do not deem it necessary to discuss them.

By the Court. — Judgment affirmed.