Baltimore & O.S.W.R. Co. v. J.A. Wood & Co.

• Decision Date: 11 December 1908
• Citation: 130 Ky. 839,114 S.W. 734
• Parties: BALTIMORE & O. S.W. R. CO. v. J. A. WOOD & CO.
• Court: Kentucky Court of Appeals

114 S.W. 734

130 Ky. 839

BALTIMORE & O. S.W. R. CO. v. J. A. WOOD & CO.

Court of Appeals of Kentucky.

December 11, 1908

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

"To be officially reported."

Action by J. A. Wood & Co. against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Gibson Marshall & Gibson, for appellant.

Fox &amp Jackson and F. T. Fox, for appellees.

BARKER J.

The appellees, J. A. Wood & Co., had purchased in and around East St. Louis, Ill., 25 mules, which they placed in the hands of Pendleton & Co. to be shipped to Charlestown, W.Va. Pendleton & Co., as agents of appellees, entered into a contract with the appellant, Baltimore & Ohio Southwestern Railroad Company, by which it agreed to carry the mules to their point of destination. The contract made by Pendleton & Co. with appellant was in writing, and is contained in the bill of lading filed as an exhibit with an amended answer of appellant. In pursuance of this contract, the appellant took charge of the mules and carried them in its cars, first, to Cincinnati, Ohio, where they were unloaded and fed 200 pounds of hay. They were then reloaded and carried to Athens, Ohio which was the end of appellant's line, and there the cars containing the mules were delivered to a connecting carrier, which transported them to their point of destination, Charlestown, W. Va., and delivered there to the consignee, J. A. Wood & Co. When first unloaded, the mules appeared to be in fairly good condition, but within a few hours three of them died. Whereupon appellees, Wood & Co., instituted this action against appellant, the initial carrier, alleging in substance that the mules had been neglected by the carrier; that it had, in violation of the federal statute regulating the matter, kept them on board its cars without food, water, or rest for more than 28 hours; that when it did feed them at Cincinnati it only gave them eight pounds of hay each, and that during the whole trip, which required four or five days, the mules were only fed, watered, and rested once, and at this time they were very insufficiently fed; that, by reason of this neglect and want of care, the mules had been weakened and injured, and three of them died in consequence; that these three were reasonably worth $430, for which judgment was prayed. The action was not founded on the written contract, but the petition alleged an oral agreement, which may be said to have differed widely from the terms of the bill of lading, although we do not find it necessary to examine the question of difference here. In the answer the defendant (appellant) denied the existence of the oral contract between it and appellees, and all negligence or want of care on its part in the transportation of the mules, pleaded the existence of the written contract which it claimed regulated the terms of its liability in the transportation of the mules, and, further, that under its terms it was only liable for such injury as occurred to the mules by reason of its negligence while they were being transported over its lines, and that its responsibility for the safety of the mules ended at Athens, Ohio, where they were delivered to the connecting carrier. The plaintiffs (appellees) by reply denied the existence of the written contract, and alleged affirmatively that Pendleton & Co. had no authority to make such a contract on their behalf. This substantially completed the issues between the parties, and a trial by jury resulted in a verdict in favor of the plaintiffs (appellees) for the value of the mules as alleged in the petition, $430.

The appellant complains on appeal that the court erred in overruling its motion for a peremptory instruction made at the close of the evidence; and this position is based upon the fact that there was a total failure of evidence on the part of the appellees to establish the alleged oral contract which constitutes the basis of the petition, and there was therefore a fatal variance between the allegations of the pleadings and the proof adduced to support them. Undoubtedly the appellees did fail to establish the existence of the oral contract because they failed to show that the party with whom the contract was made represented in any way the railroad company; and it is equally true that at common law the variance which occurred between the allegations of the petition and the proof would have entitled the appellant to a peremptory instruction to find a verdict in its favor. But the common-law rule on this subject has been changed by the Code, the object being to abrogate its harsh technicalities and to do substantial justice between the parties litigant; and for this purpose a new rule is provided, the object of which is not, as at common law, to baffle or perplex justice by an immaterial variance, but to do substantial justice between the parties according to the very right of the case. The sections regulating this matter are:

"Sec. 129. No variance between pleadings and proof is material, which does not mislead a party, to his prejudice, in maintaining his action or defense upon the merits. A party who claims to have been so misled must show that fact to the satisfaction of the court; and, thereupon, the court may order the pleading to be amended, upon such terms as may be just.

"Sec. 130. If such variance be not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment."

Now, it is evident that in the case before us the defendant was not misled to its prejudice, or at all, by the variance between the oral contract sued on, and the written contract proved because it pleaded the written contract as regulating its liability, and this much of its defense was upheld by the trial court. It cannot, therefore, complain that the court took its view of this issue. The very question we have here arose in Illinois Central R. R. Co. v. Curry, 106 S.W. 294, 32 Ky. Law Rep. 515, and in the opinion the authorities construing the sections of the Code, supra, were all reviewed. In that case, as in this, the plaintiff sued on an oral contract for damages to stock by the common carrier, and the defendant pleaded a written bill of lading limiting its liability. It was there claimed, as here, that there was a variance between the pleading and the proof, because of the failure to establish the oral contract. But it was held that the fact that the plaintiff alleged an oral contract, which the defendant denied and pleaded a written contract, was not material variance if the defendant sustained its side of that controversy and the plaintiff failed to establish the oral contract sued on. And under ...