Armstrong v. Chicago, Milwaukee & St. Paul Ry. Co.

• Decision Date: 17 December 1890
• Citation: 45 Minn. 85
• Court: Minnesota Supreme Court
• Parties: S. S. ARMSTRONG <I>vs.</I> CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

45 Minn. 85

S. S. ARMSTRONG vs. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Supreme Court of Minnesota.

December 17, 1890.

Appeal by defendant from an order of the district court for Jackson county, Perkins, J., presiding, refusing a new trial after a verdict of $236.15 for plaintiff.

Andrew C. Dunn, for appellant.

Thos. J. Knox, for respondent.

MITCHELL, J.

The complaint alleges that at Chicago the plaintiff delivered to defendant, as a common carrier for hire, a certain mare for transportation from Chicago to Lakeland, Minn., and charges negligence on the part of the defendant in the care of the animal while thus in its possession and custody, which caused her sickness and subsequent death. One paragraph of the complaint charges negligence while the mare was in the possession of the defendant "as such carrier, and otherwise." Another paragraph charges negligence after the mare arrived at Lakeland and while it there remained and continued in the possession of defendant, for a period of some three days. This paragraph is stated to be "for a second cause of action." Before any evidence was introduced, defendant moved that the plaintiff be required to elect on which of the two causes of action he would proceed. The court denied the motion, and thereupon plaintiff introduced his evidence. When he rested, the defendant renewed its motion, which the court granted, and thereupon the plaintiff elected to rely for a recovery upon "the second cause of action." The refusal of the court to require plaintiff to elect at the opening of the trial is assigned as error. Even if the complaint had stated two causes of action, it was not a case requiring an election, as there was no inconsistency between the two. But, although inaccurately so called, the complaint did not state two causes of action, but only one, to wit, negligence in the care of the property, constituting a breach of defendant's contract of bailment. There was but a single contract, and the fact that, under it, the degree of care and responsibility imposed on the defendant as carrier while the property was in transit might be greater than that imposed upon it as warehouseman or mere custodian, after it arrived at its destination, and the lapse of a reasonable time for its removal by the owner, would not create two causes of action. Moreover, even if it had been a case requiring an election, the defendant was not prejudiced by its being made when plaintiff rested, instead of at the commencement of the trial, as no evidence was introduced which was not admissible under the so-called "second cause of action."

2. The main contention of plaintiff upon the trial was that, after the arrival of the mare at Lakeland, the defendant negligently put her into an unsuitable and unsafe stable, where she was exposed to cold and wind, whereby she became sick with the disease of which ...