A. Arnold & Son T. & S. Co. v. Weisiger
| Decision Date | 22 May 1928 |
| Citation | 224 Ky. 659 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | A. Arnold & Son Transfer & Storage Company v. Weisiger, et al. |
6. Appeal and Error. — Where evidence that shipper's agent falsely stated value of property destroyed by fire in transit, thereby obtaining lower rate of transportation and preventing carrier from providing adequate insurance, was admitted on issue of value in action against carrier, ruling sustaining demurrer to paragraph of answer averring such facts was not prejudicial.
7. Appeal and Error. — For purpose of testing propriety of refused instruction offered by appellant, Court of Appeals must assume that transaction which was subject of instruction occurred as appellant's agent testified.
8. Carriers. — In action against transfer company for value of household goods and wearing apparel, destroyed by fire in transit, testimony of defendant's agent, who was familiar with, and knew as well as owner, probable value of property, which most casual observer could see was worth more than $1,500, that one of plaintiffs or their agent stated that such sum would be sufficient valuation tended, at most, to prove contract for relief from carrier's common-law liability, contrary to Constitution, sec. 196, and hence did not warrant instruction that plaintiffs were estopped to claim greater sum if they fraudulently represented articles to be worth such amount and believed that carrier accepted them on such representations.
9. Carriers. — Shippers exhibiting furniture, household goods, and wearing apparel, not in sealed packages or closed box, to transfer company held not estopped by fraud to claim more than represented value of such articles on their destruction by fire in transit; carrier not being deceived.
10. Carriers. — Carrier is absolutely liable for value of property, such as furniture and household goods, destroyed by fire while in its custody.
11. Carriers. — In action against transfer company for value of furniture and wearing apparel destroyed by fire in transit, usual instruction on measure of damages held not erroneous because goods were bequeathed to plaintiffs by a relative and it was unnecessary to replace them because of their possession of other such goods, in view of evidence that property had been in use by plaintiffs from time they acquired it and was being removed to their home in another state for use there.
12. Appeal and Error. — Instruction on measure of damages for loss of household furniture and wearing apparel destroyed by fire in transit held not prejudicial to defendant transfer company, even if some of wearing apparel of person, from whom it was received by plaintiffs, was of little value or incapable of use, where verdict was considerably less than proved value of goods lost and no substantial amount was allowed for loss of such apparel.
13. Carriers. — Where delivery of household goods to transfer company for shipment and loss thereof by fire in transit were admitted, court was warranted in directing jury to find for shippers the value of goods lost in accordance with instruction on measure of damages.
14. Trial. — When there is no proof to sustain a claim asserted, the court is justified in directing the jury to disregard it.
15. Appeal and Error. — Permitting jury, in action against transfer company for value of property destroyed by fire in transit, to have in its possession a list of lost articles, which was contained in both petition and answer and testified about at great length, held not reversible error, in absence of objection by defendant's counsel, who was present as required by Civil Code, sec. 321, when judge obtained list from plaintiff and delivered it to jury, though it had not been introduced in evidence.
16. Trial. — The trial court has a discretion in the matter of permitting the jury to have possession of list of lost property for value of which shippers are suing carrier.
17. Appeal and Error. — Litigants may not experiment with jury and then complain after the event of something allowed to pass with their tacit consent or at least without objection seasonably made.
18. Trial. — The credibility of the witnesses must be judged by the jury.
19. Appeal and Error. — On controverted questions of value, the Court of Appeals reposes confidence in the finding of a properly instructed jury within the limits of the proof, under Civil Code, sec. 126, subsec. 4.
Appeal from Jefferson Circuit Court
W.S. HEIDENBERG and WM. MIX for appellant.
LUKINS & JONES for appellees.
Affirming.
The appellant, as its name indicates, is a common carrier. It undertook, for hire, to transfer a large quantity of furniture, household goods, and wearing apparel for the appellees from Louisville, Ky., to Hendersonville, Tenn., and while in transit by truck the entire shipment was destroyed by fire. This action was instituted by the owners to recover of the carrier the value of the property destroyed, resulting in the recovery by plaintiffs of a judgment for $3,200. Failing to obtain a new trial in the court below the carrier appeals. The grounds of complaint and the relevant facts will appear appropriately in the opinion in discussing and disposing of the various contentions.
1. The first complaint of the action of the court below is grounded upon an order sustaining a demurrer to a paragraph of the answer pleading, in substance, that the agent of appellees falsely stated the value of the property lost, thereby obtaining a lower rate of transportation and preventing the carrier from providing adequate insurance to protect itself from a casualty such as occurred. Substantially the same matter was pleaded in another paragraph of the answer, with the exception of the allegation respecting the insurance.
In so far as the pleading asserted a contract purporting to relieve the carrier from its common-law liability, it was void (Constitution, sec. 196); and in so far as it attempted to rely upon the fraud of the shipper, it was defective in failing to set forth facts showing that the carrier was in truth deceived by the valuation alleged (Southern Express Co. v. Fox & Logan, 131 Ky 257, 115 S.W. 184, 117 S.W. 270, 133 Am. St. Rep. 241). The pleading shows that the carrier could not have been defrauded, as the goods were not hidden or of a peculiar character, but consisted simply of furniture and ordinary household goods, about which the carrier was as well advised as the shipper. 14 Am. & Eng. Enc. of Law, 86-106; 20 Cyc. 14, 32; Adams Express Co. v. Walker, 119 Ky. 121, 83 S.W. 106, 26 Ky. Law Rep. 1025, 67 L. R.A. 412; Southern Exp. Co. v. Fox & Logan, 131 Ky. 263, 115 S.W. 184, 117 S.W. 270, 133 Am. St. Rep. 241; Chesapeake & O.R. Co. v. Hall, 136 Ky. 379, 124 S.W. 372, Ann. Cas. 1912A, 364.
The omission from the pleading of the essential allegations indicated is not supplied by the conclusion of the pleader that the carrier was deceived. The statement of mere legal conclusions in a pleading is forbidden by the Code and disregarded by the court as surplusage. Newman (3d Ed.) Pleading and Practice, sec. 207; Machen v. Bernheim, 93 S.W. 621, 29 Ky. Law Rep. 427; Ky. Judicial Dictionary, vol. 1, p. 623.
Neither does the pleading set forth facts constituting an estoppel. It omits the essential element already observed and the further ingredient of materiality. Crescent Grocery Co. v. Vick, 194 Ky. 727, 240 S.W. 388.
In so far as the facts averred in the pleading were relevant on the issue of value, they were admissible and actually admitted in evidence, and the ruling of the court on the demurrer was not erroneous or prejudicial.
2. The next criticism is leveled at the action of the court in refusing to give an instruction offered by the appellant. The instruction offered advised the jury that if the plaintiff's falsely, fraudulently, and knowingly misrepresented the value of the articles to be worth the sum of $1,500, and they should believe that the carrier accepted them upon such misrepresentations, then plaintiffs were estopped to claim from the carrier any greater sum than $1,500. Appellant's agent testified that he examined carefully the furniture and household...
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