Atchison v. Rodgers.

Decision Date04 February 1911
Citation113 P. 805,16 N.M. 120
CourtNew Mexico Supreme Court
PartiesATCHISON, T. & S. F. RY. CO.v.RODGERS.
OPINION TEXT STARTS HERE

Syllabus by the Court.

An assignment of error that the court erroneously admitted the deposition of a given witness questions the admissibility of the deposition as a whole, and not the admissibility of isolated answers therein.

Objections not made in the court below to questions propounded to witness will not be considered on appeal.

The refusal of the court to permit defendant to prove on cross-examination of plaintiff the execution of a contract by the latter is, if erroneous, not prejudicial where plaintiff's pleadings admit execution of such instrument.

Written stipulations between counsel when fairly entered into should be enforced, but such are not by strained construction to be given an effect beyond their terms.

Where a negative condition lies peculiarly within the knowledge of the other party the averment of such condition is taken as true unless disproved by such other party.

Applying the principle as stated, where the statute of a foreign state tendered by the plaintiff against the defendant railroad company provides that no such company shall be permitted, except as otherwise provided by regulation or order of the board of railway commissioners, to change or limit its common-law liability as a common carrier, the burden is not upon the shipper to show that no such permission exists, but is upon such company to show that permission was given it to make such a contract.

The validity of a contract executed in a sister state will be determined by the courts of this jurisdiction according to the laws of such sister state as construed by the highest court of such state, unless the intention of the parties appears that a different construction shall prevail, or unless such a construction conflicts with some settled policy of this jurisdiction.

Under the laws and decisions of Kansas the common-law liability of railroads as common carriers is to make the shipper whole by payment in full for property lost or damages to the extent of injuries sustained, and a contract limiting this liability is void unless made by permission or order of the State Board of Railroad Commissioners.

The provisions of the act of Congress of June 29, 1906, c. 3591, § 7, 34 Stat. 595 (U. S. Comp. St. Supp. 1909 p. 1166), known as the “Hepburn Act,” did not displace the previously existing state statute restricting the right of a common carrier to limit liability upon interstate shipments. Latta v. Chicago, etc., Ry. Co., 172 Fed. 850, 97 C. C. A. 198, followed.

The use by the shipper of a contract as a basis for transportation accompanying animals shipped does not estop him to deny the validity of a provision of that contract limiting the carrier's common-law liability where such contract obligates him to accompany such animals so as to feed, water, and otherwise attend them.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Action by Jordon Rodgers against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Written stipulations between counsel when fairly entered into should be enforced, but such are not by strained construction to be given an effect beyond their terms.

The appellee, Jordon Rodgers, sued the appellant railroad company to recover the value of two jacks which Rodgers delivered to the appellant at Olathe, Kan., on March 6, 1908, for transportation to San Marcial, N. M., and which it is alleged were killed en route near Newton, Kan., through the negligence of the company's agents. The ownership of the animals, their value, and the defendant's negligence in causing their death were substantially the only allegations of the complaint put in issue by the answer. The latter set up as defensive new matter a written contract entered into at the time and place of shipment limiting the liability of the defendant to $100 for each animal. The plaintiff replied, admitting the execution of the contract, but denying its validity as such because contrary to and null and void under the laws of the state of Kansas where executed. Holding in accordance with this contention, the court declined to permit the contract to go to the jury. A verdict was returned for the plaintiff in the sum of $2,125, from a judgment upon which the defendant appeals.

R. E. Twitchell and E. W. Dobson, for appellant. Marron & Wood, for appellee.

POPE, C. J. (after stating the facts as above).

Most of the errors alleged are upon the admissibility of evidence. It is said, first, that the court erred “in permitting to be read to the jury over the objection of the defendant, the deposition of W. D. Gibson, of Blackwater, Missouri.” This assignment upon its face is an objection to the admissibility of the entire deposition, and not a portion thereof. Treating it as such it is a sufficient disposition of such exception to say that the only objection urged on the trial to the whole deposition was that it was taken without notice to counsel. This objection was, however, subsequently withdrawn, so that the deposition as such went in finally without objection. Upon the trial and at this bar, however, diverging from the assignment of error, it was urged that certain questions and answers contained in the deposition were improperly received. Waiving in the interest of a full consideration of the case the manifest insufficiency of the assignment to reach these rulings, we find that the following occurred on the reading of the depositions at the trial:

(6) Do you know what was the fair and reasonable value of the said jacks on the date of sale to the plaintiff? Counsel: I object to the interrogatory on the ground that the fair and reasonable value of the jacks on the date of the sale has nothing to do with the case and because it is immaterial and irrelevant. The Court: Objection overruled. Counsel: Exception. A. Yes.

(7) State your experience in the buying and selling of jacks as it existed on the third day of March, 1908, from which you gained the knowledge of value upon which you answered the preceding question? Counsel: I object to this as not being a relevant question and as incompetent and immaterial. The Court: Objection overruled. Counsel: Exception. A. I have been buying, raising and selling jacks for thirty (30) years and during this time I have handled quite a number of jacks. I have always attended the important jack sales made in my own neighborhood.

(8) State what was the fair and reasonable value of the said jacks on the day of the sale and delivery to the plaintiff. A. These jacks were worth fourteen hundred ($1,400) dollars for the two.

(9) Assuming the jacks to be in the same condition as when delivered to the plaintiff, state, if you know, what was their actual value at Olathe, Kansas, on or about the 6th day of March, 1908? Counsel: I object to the answer of the ninth interrogatory on the ground that it is vague and not responsive to the question. The Court: Overruled. Counsel: Exception. A. They were worth fourteen hundred ($1,400) dollars, plus expense and freight.

(10) State if you know whether or not there is any fixed market or definite market price for jacks at or near Blackwater, Missouri? Counsel: I object to the tenth interrogatory on the ground that it is immaterial and irrelevant whether there was any market value for jacks at Blackwater, Missouri. Opposing Counsel: I will withdraw the question on the objection.”

It is clear that there was no error in the foregoing. Questions 6 and 7 were purely preliminary, and went to the qualification of the witness to testify as to value, so that the objection that the value of the jacks at the time and place of sale was immaterial was prematurely made. To question 8 which did call for such value of the animals at Blackwater, Mo., there was no objection. To question 9 which asked the value at Olathe, Kan., there was no objection, the point made being upon the answer on the ground that it was vague and indefinite, neither of which objections was tenable. Question 10 was upon objection withdrawn. We find nothing, therefore, in the record, to invoke a decision as to whether the court correctly permitted evidence of value at points other than the destination San Marcial, N. M. Were the matter before us much might, however, be said, in view of the fact that the defendant had inquired of plaintiff on his direct examination what he had paid for the jacks at Blackwater, to support the ruling of the court permitting testimony that the price paid was a low one according to market values at the place he purchased. Since the defendant was permitted to prove that the jacks cost only a thousand dollars, it would seem that plaintiff was entitled to reply by his testimony that while this was true he got them much below the actual value, all this, of course, to throw light upon the ultimate question, which was the value at San Marcial.

The remaining assignments are all connected with the special contract pleaded in the answer limiting liability to $100 and the Kansas statute which the reply sets up as rendering the contract ineffectual. Appellant complains that he was not allowed to prove by plaintiff on cross-examination the execution of this contract. We deem this ruling entirely without prejudice, however, for the reason that plaintiff's reply, as we read it, admitted the execution of the paper pleaded in the answer. We are unable to see how a refusal to permit plaintiff to testify to the execution of an instrument which was mutually admitted, could in any sense be prejudicial.

A further assignment is that the court erred in not giving the stipulation tendered on the trial the effect of precluding the plaintiff from questioning the legal efficacy of the contract as limiting recovery for the animals. The stipulation was as follows: “It is hereby agreed between counsel for plainti...

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    ... ... 412, 130 S.W. 562, Ann. Cas. 1912A, 610.) Upon the question ... that the court did not err in excluding the proffered ... evidence, see Atchison, T. & S. F. Ry. Co. v ... Rodgers , 16 N.M. 120, 113 P. 805 ... It is ... further insisted by appellant that the court erred in not ... ...
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    ...whole writing is untenable. State v. Hernandez, 36 N.M. 35, 7 P.2d 930; State v. Moore, 42 N.M. 135, 76 P.2d 19; Atchison, T. & S. F. R. Co. v. Rodgers, 16 N.M. 120, 113 P. 805; Texas & Pacific R. Co. v. Coutouri, 2 Cir., 135 F. 465; Mock v. City of Muncie, 9 Ind.App. 536, 37 N.E. 281. The ......
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