Adams Express Co. v. Welborn

• Decision Date: 22 January 1915
• Docket Number: No. 8473.,8473.
• Citation: 108 N.E. 163,59 Ind.App. 330
• Parties: ADAMS EXPRESS CO. et al. v. WELBORN.
• Court: Indiana Appellate Court

59 Ind.App. 330

108 N.E. 163

ADAMS EXPRESS CO. et al.

v.WELBORN.

No. 8473.^d1

Appellate Court of Indiana, Division No. 2.

Jan. 22, 1915.

Appeal from Circuit Court, Gibson County; Herdis C. Clements, Judge.

Action by Ernest P. Welborn against the Adams Express Company and another. Judgment for the plaintiff for $400, and defendants appeal. Affirmed on condition that plaintiff would enter a remittur of $250.

Embree & Embree and James B. Gamble, all of Princeton, for appellants. Veneman & Welborn, of Evansville, and O. M. Welborn, of Princeton, for appellee.

IBACH, J.

This was an action by appellee against appellant to recover damages for an alleged breach of their common-law duty to carry and deliver safely a certain hog shipped by appellee. The amended first paragraph and the second paragraph of complaint are, to all intents and purposes, the same, and for the purposes of this appeal may be considered together. Each alleged the delivery of the hog by appellee's agent to the Adams Express Company at Trivoli, Ill.; the payment of the charges for transportation from that station to Cynthiana, Ind.; the undertaking of the Adams Express Company to carry the hog safely and deliver the same to the plaintiff; the delivery of the hog by the Adams Express Company to the United States Express Company; and negligence in the carriage and treatment of said hog by defendants which caused his death while in their possession. Each appellant demurred to each paragraph of complaint, and filed a motion to require appellee to make each paragraph of complaint more specific, and the court ruled against appellants in each of these instances. The issues for trial were made up by answers in general denial and special answers, which set up that the hog was carried under a contract of limited liability, and replies to these answers. Trial by the court, a special finding of facts made, and conclusions of law stated thereon in favor of appellee against both defendants. Over their motions for new trial, judgment for $400 was rendered against them.

[1] The action of the court in overruling the motion of the Adams Express Company to require the complaint to be made more specificis assigned as error. The principal averments of the complaint have previously been set forth. Both paragraphs are sufficiently clear and specific to inform appellants of the charges of negligence which they were required to meet, and stated a good cause of action upon the theory of the breach of the common-law duty of a carrier. Further, the refusal of a motion to make a complaint more specific is so far within the discretion of the trial court that a cause will not be reversed on that ground unless the rights of the complaining party have suffered, which is not the case here. Bond v. State, 179 Ind. 644, 647, 102 N. E. 97. There was evidence to show negligence on the part of each defendant contributing to the death of the hog.

The only question of importance in the case arises upon the exceptions of appellants to the court's conclusions of law, and relates to the effect of a contract of limited liability, which is set out in the findings of fact, and which the court found was entered into by Henry White as agent of appellee, and F. E. Bird as agent of appellant Adams Express Company, at Trivoli, Ill. This contract contains an agreement that the charges of the company are fixed by and based upon the value of the animals as declared by the shipper, and that, the shipper, before delivering the animal to the company, demanded to be advised of the rates charged for the carriage, and was offered alternative rates proportioned to the value to be fixed and declared by the shipper, according to a published schedule. This schedule is such that the shipper may place any value whatever on the shipment. On its face the contract shows that there is no limitation whatever as to the value which the shipper may place upon the animals, and there is no finding of the court that any limitation was placed upon the value which he might declare. The rate between the points mentioned for a hog which was valued at not more than $50 was $13.50. The correct rate between the points for a hog valued at $150 would be $15, but by mistake and inadvertence Bird collected from White $15.54. The contract contains a further stipulation that the shipper, in order to avail himself of the alternative rates proportioned to the value of the animals, declares the values mentioned to be the true values of the animals, and expressly agrees that in no event shall the express company be liable in excess of the declared valuation. When this contract was entered into, the said Bird, as agent of appellant Adams Express Company, demanded of said White, as agent of Welborn, that he execute the instrument in writing, and ship the hog upon the conditions and agreements set out in said instrument; he did not give said White any opportunity to ship the hog without limitation of liability, and had no authority to change said printed form of contract, or to make any other form of contract for the shipment of said hog, and had no power...