Indiana, I.&I.R. Co. v. Doremeyer

• Decision Date: 18 May 1898
• Citation: Indiana, I.&I.R. Co. v. Doremeyer, 20 Ind.App. 605, 50 N.E. 497 (Ind. App. 1898)
• Court: Indiana Appellate Court
• Parties: INDIANA, I. & I. R. CO. v. DOREMEYER.

20 Ind.App. 605

50 N.E. 497

INDIANA, I. & I. R. CO.

v.DOREMEYER.¹

Appellate Court of Indiana.

May 18, 1898.

Appeal from circuit court, Lake county; John H. Gillett, Judge.

Action by Nannie E. Doremeyer against the Indiana, Illinois & Iowa Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

T. S. Francher, for appellant. W. C. McMahan, for appellee.

HENLEY, J.

This action was commenced by the appellee against the appellant as a common carrier for damages sustained by the appellee on account of the failure of the appellant to safely transport and deliver certain household goods and wearing apparel, the property of the appellee. The complaint is in substance as follows: That on the 28th day of November, 1896, the defendant (the appellant) was a common carrier of goods for hire from Dwight, Ill., to Lowell, Ind., and on said day, at Dwight, Ill., by its agent, then and there in writing agreed, in consideration of the sum of $4.45 then and there to be paid by appellee to said agent, to safely and promptly carry for appellee, and to deliver to her at Lowell, Ind., certain household goods and clothing, a copy of which said agreement is filed with the complaint, and made a part thereof, and that the plaintiff then and there delivered to the appellant for that purpose the certain goods aforesaid; that appellant did not safely carry and deliver said goods as aforesaid, but failed to do so, by which reason the appellee was deprived of the use of any of said goods for a long time, to wit, more than 30 days, and whereby certain of said goods and clothing so owned by appellee, and described in the bill of particulars filed with and made a part of the complaint, was wholly lost; and that she was put to great inconvenience in her living and comfort, and damaged in the sum of $200. To this complaint, appellant answered in two paragraphs. The first paragraph was a general denial. The second paragraph of answer admits that on or about the middle of September, 1896, appellee's husband shipped his household goods, furniture, and wearing apparel from the state of Indiana to the town of Dwight, state of Illinois, and that on or about the 26th day of November, 1896, the appellee's husband caused said goods to be reshipped from said town of Dwight to Lowell, Ind., over appellant's road; but appellant says that shortly after said goods were delivered at appellant's freight depot at Dwight, and after the same had been loaded into the car, a creditor of appellee's husband caused said property to be attached in said town by a writ duly issued by a dulyauthorized court of said state. A copy of the complaint, affidavit, bond, notice, and writ is attached to and made a part of the answer, together with a certified copy of the judgment in said court. It is further averred that the officer so serving said writ took possession of all of said property, and kept and retained possession thereof, and prevented the appellant from shipping said goods, as appellant otherwise would have done had said writ not been served and said goods attached. It is further averred that the appellant could not ship said goods, because the officer having full control of said goods refused to permit the defendant to ship the same to said appellee, and that, as soon as said goods were attached and taken into the custody of said officer, appellant notified the appellee and her husband that said property had been so attached, and fully informed said appellee and her husband of the nature of said process by which shipment of said goods was prevented, and that, if appellee sustained any injury or damage to herself or goods, it was while they were in the custody of the officer, and while attached at Dwight, Ill. Appellant further avers that when said goods were delivered at appellant's freight depot, in the town of Dwight, said goods were duly consigned to the appellee, and a bill of lading duly issued by it to the consignee, the appellee herein, and that said goods were detained at the said town of Dwight without any fault or negligence on the part of this appellant or by any of its agents, servants, or employés, and that, as soon as said property so attached was released, this appellant shipped said goods to the consignee, the appellee herein. The appellee replied to the second paragraph of appellant's answer, denying each and every material allegation therein set forth.

Upon the issues thus formed, there was a trial by the court, and, at the request of appellant, the court made a special finding of facts, which was in the following words: “The court, having been requested by both the plaintiff and defendant in the above-entitled cause to make a special finding herein, together with its conclusions of law thereon, finds the facts as follows: That plaintiff commenced this action to recover from the defendant by way of damages for loss of certain goods described in a bill of particulars filed with her complaint, which goods were to be shipped by her husband for her from Dwight, in the state of Illinois, over the defendant's railroad to Lowell, Ind.; that said goods were delivered at the office of the defendant in the town of Dwight, and a bill of lading issued by the defendant's agent to Mrs. N. E. Doremeyer, the plaintiff, to be shipped to her at Lowell, Ind.; that said bill of lading was issued on the 28th day of November, 1896; that, on receipt of the said goods by the defendant, the same were immediately placed in one of defendant's cars, to be shipped to their destination, as required by said bill of lading; that on the 29th day of November, 1896, while said goods were in the defendant's car at Dwight, one Thomas Jenkins, a constable of said town of Dwight, caused said goods to be attached by virtue of a writ of attachment duly issued from a justice court in an action begun by one Jane Burhan against Frank Doremeyer, the husband of the plaintiff herein; that, immediately before the levy, the officer, armed with said writ, but which he did not exhibit, asked defendant's said agent if he had any goods in his possession belonging to Doremeyer; that, in response thereto, the agent answered that he had, and stated that the goods were then in the car; that without anything further transpiring, and without objection upon the part of the agent, the officer seized and levied on said goods. The court further finds that the plaintiff's husband shipped a lot of household goods to Dwight, Ill., from Lowell, Ind., during the month of September, 1896; that said goods were billed from Lowell to Dwight in September, 1896; that said Frank Doremeyer was then the consignee and consignor of said household goods; that when he delivered the goods to the agent at Dwight,...