Toledo, St. L.&W.R. Co. v. Milner

Citation62 Ind.App. 208,110 N.E. 756
Decision Date15 December 1915
Docket NumberNo. 8771.,8771.
PartiesTOLEDO, ST. L. & W. R. CO. v. MILNER et al.
CourtIndiana Appellate Court


Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Action by George D. Milner and others against the Toledo, St. Louis & Western Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Charles G. Guenther, Braden Clark, and Geddes Van Brunt, all of Frankfort, and Clarence Brown and Charles A. Schmettau, both of Toledo, Ohio, for appellant.

William Robison, of Frankfort, for appellees.


This is an action for damages alleged to have been sustained by appellees in connection with nine separate interstate shipments of cattle, hogs, and sheep. Seven of the shipments were from Frankfort, Ind., to Pittsburgh, Pa., and the other two were from Frankfort, Ind., to Buffalo, N. Y. The suit is based on the common-law duty of appellant to safely carry and deliver the live stock at the designated place. The complaint alleges negligence of appellant in delaying the shipments and failing to transport the live stock with reasonable diligence, by reason of which negligence some of appellees' live stock died en route, there was an extra shrinkage on other stock, the animals had a stale appearance by reason of being kept so long on the road, and there was a decline in the market price between the time the stock should have arrived and the time it did arrive, by reason of all which appellees were damaged.

The complaint consists of nine paragraphs, each of which covers a different interstate shipment; but they are in all essentials the same. In each it is alleged that appellees were partners engaged in buying and shipping live stock; that appellant owned and operated a railroad from Toledo, Ohio, to East St. Louis, Ill., and was a common carrier of freight and passengers for hire, and engaged in interstate commerce, and held itself out as such common carrier from Frankfort, Ind., to Pittsburgh, Pa., and Buffalo, N. Y.

To each of such paragraphs appellant filed an answer in two paragraphs, the first of which is a general denial, and the second an affirmative paragraph, in which appellant admits that it received shipments of live stock from appellees to be carried to Pittsburgh, Pa., or Buffalo, N. Y., as the case might be, but says that such live stock was delivered by appellees and received by appellant under a special written contract duly entered into by the parties; that on the dates of the respective shipments the rate of live stock from Frankfort, Ind., to said cities, charged appellees, was a lower rate than that charged without a special contract and without limitation of appellant's liability; that appellant maintained two rates on live stock between the points named; that the rate, where no special contract limiting its liability was executed, was 10 per cent, higher than where a shipment was made under special contract; that both rates were duly filed with the Interstate Commerce Commission and published, and were the only lawful established rates for such shipments and were reasonable; that appellees knew of the above rates, and for the purpose of obtaining the lower rate made and entered into a special contract, a copy of which is filed with such answer; that appellees could have shipped said stock at the higher rate, and without executing any special contract, and without limitation of appellant's liability; that they had full opportunity to do so; that appellant has fully complied with all the terms and conditions of the special contract by it to be performed, but appellees have wholly failed to comply with the terms thereof in this: That they have failed to present their claims for loss or damage, in writing, verified by their affidavit, within the time given and stipulated by said contract.

To each of such affirmative paragraphs of answer appellees replied by general denial and by a plea of want of consideration. Upon the issues thus formed the cause was tried by a jury, and a verdict returned in favor of appellees for $525. With its general verdict the jury returned answers to interrogatories. Judgment was rendered on the verdict, and appellant's motions for a new trial and in arrest of judgment were respectively overruled. The errors assigned and relied on for reversal are: (1) Error of the court in overruling the motion for a new trial, and (2) in overruling appellant's motion in arrest of judgment; and (3) the complaint does not state facts sufficient to constitute a cause of action.

[1] Since the amendment of section 348, Burns 1908, by Acts 1911, p. 415, no question is presented by the third error assigned. Section 348, Burns 1914.

The question arising under the motion for a new trial, and not waived by failure to present in the briefs, is the sufficiency of the evidence to sustain the verdict. Kaufman v. Alexander, 180 Ind. 670, 672, 103 N. E. 481;Chicago, etc., R. Co. v. Dinius, 180 Ind. 596, 626, 103 N. E. 652;Harrah v. Dyer, 180 Ind. 229, 242, 102 N. E. 14.

Appellees do not claim that they complied with the contract pleaded by appellant by filing verified proofs of claims within the five days therein prescribed, but they do contend that they were given no choice of rates, but were compelled to ship at the rate named in the one special contract or not at all; that by reason thereof such alleged contracts are not binding on them; that, independent of the state or federal statutes, appellant is liable under the common law for the damages sustained.

Appellant contends that no common-law liability is shown; that the shipments were made under special written contracts, and in no event can a common-law liability be shown by proof that shipments were so made; that the contracts under which the stock was shipped were valid and sustained by a sufficient consideration.

[2] The shipments were all interstate commerce, and as to such shipments state legislation is superseded by the federal statute on the subject. Wabash, etc., R. R. Co. v. Priddy, 179 Ind. 483, 494, 101 N. E. 724;Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, and notes; 4 R. C. L. p. 909.

[3] Both the shipper and carrier are bound to know that under the federal law regulating interstate shipments there may be at least two rates, and that they are binding on the parties if they have been filed with the Interstate Commerce Commission and duly approved and published; that the shipper has the option of choosing the rate under which he will ship, and when such option is exercised the carrier is bound to make the shipment accordingly, and the rights of the parties as to damages, if any, sustained by the shipper, will be determined in accordance with any reasonable stipulations accompanying the rate under which the shipment is made; that the shipper cannot by contract relieve itself from liability for actionable negligence. Cleveland, etc., R. Co. v. Hayes, 181 Ind. 87, 104-105, 102 N. E. 34, 103 N. E. 839;Illinois, etc., R. Co. v. Henderson Elevator Co., 226 U. S. 441, 33 Sup. Ct. 176, 57 L. Ed. 290;Boston, etc., R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; Adams Express Co. v. Croninger, supra; Missouri, etc., R. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690;Hart v. Pennsylvania, etc., R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717.

[4][5] To sustain the judgment of the lower court two propositions must be established, viz.: First, that notwithstanding the federal statute on the subject of interstate shipments, there is still a right of action at common law in certain instances for damage sustained by the shipper on account of the negligence or wrongful acts of the carrier; second, that in the case at bar there is evidence tending to sustain the verdict on such theory.

Section 22 of the Interstate Commerce Act provides that:

“Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.”

In considering this provision the Supreme Court of the United States, in Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, said:

“Repeals by implication are not favored, and indeed a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required. *** This clause, however, cannot in reason be construed as continuing in shippers a...

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3 cases
  • Ferris v. Minneapolis & St. Louis Railroad Company
    • United States
    • Minnesota Supreme Court
    • June 20, 1919
    ... ... Houtz v. Union Pac. R. Co. 33 Utah 175, 93 P. 439, ... 17 L.R.A. (N.S.) 628; Toledo St. L. & W.R. Co. v ... Milner, 62 Ind.App. 208, 110 N.E. 756; Cleveland, ... C.C. & St. L.R ... ...
  • Ferris v. Minneapolis & St. L. Ry. Co.
    • United States
    • Minnesota Supreme Court
    • June 20, 1919
    ...777,7 L. R. A. (N. S.) 1041;Houtz v. Union Pacific Ry. Co., 33 Utah, 175, 93 Pac. 439,17 L. R. A. (N. S.) 628;Toledo, St. L. & W. Ry. Co. v. Milner, 62 Ind. App. 208, 110 N. E. 756;Cleveland, C., C. & St. L. Ry. Co. v. Patton, 203 Ill. 376, 67 N. E. 804;Grice v. Oregon-Washington Ry. & Navi......
  • Toledo, St. Louis & Western Railroad Co. v. Milner
    • United States
    • Indiana Appellate Court
    • December 15, 1915

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