Adams Express Company v. Welborn
| Decision Date | 22 January 1915 |
| Docket Number | 8,473 |
| Parties | ADAMS EXPRESS COMPANY ET AL. v. WELBORN |
| Court | Indiana Appellate Court |
Costs Ordered Retaxed June 23, 1915.
From Gibson Circuit Court; Herdis F. Clements, Judge.
Action by Ernest P. Welborn against the Adams Express Company and another. From a judgment for plaintiff, the defendant appeals.
Affirmed conditionally.
Embree & Embree and James B. Gamble, for appellants.
Veneman & Welborn and O. M. Welborn, for appellee.
OPINION
This was an action by appellee against appellants 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 Illinois, the payment of the charges for transportation from that station to Cynthiana, Indiana, 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 its 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 a new trial, judgment for $ 400 was rendered against them.
The action of the court in overruling the motion of the Adams Express Company to require the complaint to be made more specific is 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. Board, etc. v. State ex rel. (1913), 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, Illinois. 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 or authority to accept said hog under a contract other than one of limited liability. The contract under which the hog was shipped contained various other limitations of liability, none of which are brought into question in this action. The court stated a conclusion of law that the contract of limitation of liability was void.
It was decided in the case of Adams Express Co. v Croninger (1912), 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N. S.) 257, and this decision has been followed in all the later cases, that by the Carmack amendment to the Hepburn act (§ 20, Act of June 29, 1906, 34 Stat. at Large 584, Chap. 3591; U.S. Comp. Stat. Supp. 1911 p. 1288), the subject of liability of a common carrier for loss or damage to an interstate shipment becomes entirely a Federal question, since this amendment is intended to and does supersede all state laws on the same subject. As this amendment does not specifically refer to agreements limiting the liability of a carrier to an agreed valuation, but does supersede all state statutes on that subject, the validity of such agreements is to be determined by the common law as declared by the Federal courts. It is said in the opinion in the case of Adams Express Company v. Croninger, supra, citing among others, the leading case of Hart v. Pennsylvania R. Co. (1884), 112 U.S. 331, 338, 5 S.Ct. 151, 28 L.Ed. 717, 720: "It has therefore become an established rule of the common law as declared by this court in many cases that such a carrier may by a fair, open, just and reasonable agreement limit the amount recoverable by a shipper in case of loss or damage to an agreed value, made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk." It was said in the case of Kansas City, etc., R. Co. v. Carl (1913), 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683, ...
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