179 Ind. 483 | Ind. | 1913
Complaint in one paragraph alleging that appellants and the Louisville and Nashville Railroad Company, were on January 27, 1907, corporations engaged as common carriers, and as such operating lines of railroad in Indiana; that the Louisville and Nashville Railroad Company operated a line between Nashville, Tennessee, and Louisville, Kentucky; the Chicago, Indianapolis and Louis
Appellants each unsuccessfully demurred to the complaint for want of facts sufficient to constitute a cause of action, and they answered separately by general denial.
The "Wabash Eailroad Company, for a second paragraph, answered, that the mules were shipped under a written contract, set out in the answer, and denied any partnership or agreement between it and any of the other companies, or any agreement to share in the profits of shipping anything, but that each of the companies had specific charges based upon the character and kind of freight, and neither had any authority to bind it by any contract, for negligence on the line of another company, and set out specifically a clause
The third paragraph avers shipment under a written contract, one specification of which is, that “The party of the second part, (the shipper) hereby assumes all risk of injury which the animals or any of them may receive in consequence of either or any of them being wild, unruly or weak, or by maiming each other or themselves,” and the injuries arose solely by reason of their being wild, unruly and weak, and by reason of their maiming themselves and not otherwise, and that none of their injuries complained of occurred on account of the carelessness or negligence of any of the roads over which the stock was shipped.
Appellant Chicago, Indianapolis and Louisville Railway Company, answered by a second paragraph, setting up shipment under the same written contract, and counts as a defense upon the same clause exempting it from loss by reason of the character of the animals, and the provision that it shall be the duty of the shipper to securely place the animals in the car, and see that the car is properly fastened to prevent escape from it, and another clause providing that
The third paragraph of the Chicago, Indianapolis and Louisville Railway Company counts upon the written contract of shipment, and alleges that there were at the time two joint through shipping rates on file with the Interstate Commerce Commission, between Shelbyville, Tennessee, and Huntington, Indiana, over the lines over which the shipment moved, and they were the only lawful rates which could be applied to the shipment, and all the railways were parties to such joint tariff; that it was expressly provided in the tariff that a lower rate could only be enjoyed by a shipper entering into a contract limiting the common-law liability, and that plaintiffs were given said lower rate of freight, and if they had not done so, would have been charged a higher rate, and received a rate twenty per cent lower than the rate which would otherwise have applied, and that this defendant, and all other railroads over which shipment was made complied with their contract, and carried the stock carefully, and without negligence. Demurrers for want of facts to constitute a defense were sustained to the second and third paragraphs of answer of the defendants, "Wabash Railroad Company, and Chicago,' Indianapolis and Louisville Railway Company, respectively. The Louisville and Nashville Railroad Company was also a defendant, and filed a general denial, and affirmative answers, but upon a finding of facts and. conclusions of law stated, that company was released.
There were exceptions to the conclusions of law by the other two companies, but no question is raised as to the conclusions of law, and over separate motions for a new trial, judgment was rendered against those companies. A term appeal was taken, and the Louisville and Nashville Railroad Company is not a party here. The errors assigned
4. The second point in the argument is, that, as it must be assumed that rates had been fixed and published, those rates must be regarded as just and reasonable; that the sole power and authority is vested in the commission to determine when they are just and reasonable, and when they have been fixed, filed with the commission, approved and published, the question is no longer an open one as to what is a reasonable or just rate, and that the rate must stand until, and unless, upon application to the commission, the rate is changed. This proposition we think is also settled. Texas, etc., R. Co. v. Abilene Cotton Oil Co., supra; Baltimore, etc., R. Co. v. United States, ex rel., supra; Southern R. Co. v. Reid, supra; J. C. Shaffer & Co. v. Chicago, etc., R. Co., supra.
If the question stood only upon the proposition of the rates being fair and reasonable, it might be that the statute would not be subject to the construction or attack here made, but it goes much further and provides that the carrier must show that the “contract is based upon a sufficient consideration, that it is reasonable, that it was fairly entered into by the shipper after he had been given a bona fide and full opportunity to ship at a fair and reasonable rate without limitation of liability.” The answer is not drawn upon the theory, nor is it claimed that it is an answer in compliance with §3919 Burns 1908, supra, as a valid enactment, but that the facts alleged, coupled with the Interstate Commerce Act, meet all the requirements of that section. It must be held we think that as a rate must have been fixed and approved by the commission, it follows that the rate here must be regarded as a sufficient consideration and reasonable. The contract contains limitations and conditions as to the prices to be paid for loss or damage to each animal, the place where the valuation shall be fixed, conditions as to care and feeding, and an assumption of risk on the part of the shipper of injury by the animals to each other, and of almost every chance of injury possible, except-negligence of the agents, or employes of the primary carrier, and that “delivery to connecting carriers for transportation shall be on such terms and conditions as the carrier may be willing to accept,” and others. Some of the limitations may be void, but some of them are valid, and proper subjects of contract.
It is urged that it is not shown by the evidence or found by the court, that there was a partnership between the railroad companies, and that as the fact of a partnership and joint liability is alleged, appellees must fail on that account. There may be found cases in which as to third persons, traffic agreements have been held to give rise to joint liability, as in case of an initial carrier engaging for a through carriage, in which event the other carriers become its agents. 4 Elliott, Railroads §§1444, 1445. If a partnership could be said to be authorized or allowable among corporations which are common carriers, as to which we express no opinion, it is at once seen that a joint liability for a loss on the line of any of the carriers en route would arise. In the absence of a partnership relation, while all might be sued as joint tort feasors, if any one, or all of them but one, were able to show that the loss did not occur on their lines, they would be discharged, as was the Louisville and Nashville Railroad Company in this case, while if partners all would be liable, irrespective of the actual responsibility. To charge then for a joint liability, arising from partnership, is to charge such nonoffending defendant with a liability which does not exist. It was sought on oral argument to justify the pleading on the ground of charging the defendants as joint tort feasors, but it will be remembered that-the initial carrier is not made a party, so as to fix liability upon it, and in turn upon the other carriers en route, so that the attempt is to fix a joint liability by allegations of a partnership between them. The most that can be said is, that it
We hold that the State act of 1905 was superseded as to interstate shipments, and there was no error in overruling the demurrers to the special answers, for the reason that the contract was admissible under the general denial under the general rule. Cleveland, etc., R. Co. v. Hollowell (1909), 172 Ind. 466, 88 N. E. 680, and cases there collected. But the judgment must be reversed because of the refusal so to admit it, in addition to the fact of the failure of proof of a partnership. The judgment is reversed, with instructions to the court below to sustain appellants’ motions for a new trial, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 101 N. E. 724. See, also, under (1, 2, 3, 4, 5, 7, 9) 6 Cyc. Anno. 492; (6) 16 Cyc. 889; (8) 7 Cyc. 422; (10) 11 Cyc. 752; (11) 7 Cyc. 421; (12) 6 Cyc. 492; (13) 31 Cyc. 358; (14) 6 Cyc. 524; (15) 6 Cyc. 490; (16) 6 Cyc. 478; (17) 6 Cyc. 483, 488. As to regulations of carriers of freight in interstate commerce, see 27 Am. St. 558. As to the burden of proving that loss of, or injury to, live stock in course of transportation is within a carrier’s exemption from liability as insurer, see 130 Am. St. 442. As to carrier’s liability for negligence of connecting carrier where there has been no special contract, see 106 Am. St. 604. As to the burden of proof of negligence on the part of a carrier of live stock, see 15 Ann. Cas. 35. As to the liability of a carrier of property for loss occurring on connecting line but due to its own negligence, see 19 L. R. A. (N. S.) 1012. On the question of the liability of connecting carrier for loss beyond its own line, generally, see 31 L. R. A. (N. S.) 1.