Bartlett v. Pittsburgh, Cincinnati and St. Louis Railway Co.

• Decision Date: 27 March 1884
• Docket Number: 8669
• Citation: 94 Ind. 281
• Parties: Bartlett v. The Pittsburgh, Cincinnati and St. Louis Railway Company
• Court: Indiana Supreme Court

94 Ind. 281

Bartlett v. The Pittsburgh, Cincinnati and St. Louis Railway Company

No. 8669

Supreme Court of Indiana

March 27, 1884

From the Henry Circuit Court.

Judgment affirmed, with costs.

M. E Forkner, for appellant.

J. H Mellett, E. H. Bundy, W. D. Foulke and J. L. Rupe, for appellee.

OPINION

Hammond, J.

This was an action by the appellant against the appellee to recover damages occasioned by delay in the shipment of hogs from Lewisville, this State, to East Liberty, Pennsylvania. The complaint was in six paragraphs; the answer was in fifteen paragraphs, of which the first and tenth were general denials. There was a reply in denial and also by affirmative paragraphs. A trial by jury resulted in a verdict for the appellee. Judgment was rendered on the verdict over the appellant's motion for a new trial and exceptions. The consideration of alleged errors will be confined to those discussed in the appellant's brief.

The appellant demurred for the want of facts to each of the special paragraphs of answer. The demurrer was sustained to the second, third and fourth paragraphs and overruled as to the others. Complaint is made as to the overruling of the demurrer to the fifth, eighth, ninth, eleventh, thirteenth and fourteenth paragraphs of the answer. The jury, in answer to interrogatories, found specially that the facts relied upon as a defence in the fifth and eleventh paragraphs of answer were not true. This rendered the overruling of the demurrer to those paragraphs harmless, even if such ruling was erroneous. A party has no ground of complaint to the overruling of his demurrer to a pleading if, upon trial, it affirmatively appears, from the record, that the pleading was found not to be true. State, etc., v. Julian, 93 Ind. 292.

The first paragraph of the appellant's complaint alleged that, on July 21st, 1877, the appellant delivered to the appellee, a common carrier, 265 head of hogs at Lewisville, to be transported and delivered to the appellant at East Liberty, within a reasonable time; that appellee failed to do this, but carried the hogs to Columbus, Ohio, an intermediate station, and there delayed and kept them in pens, in unhealthy places, for twelve days, whereby fifty-eight died and the remainder shrank in weight, etc., to the appellant's damage, etc. The ninth paragraph of answer was addressed to the first paragraph of the complaint. The first paragraph of the complaint, as will be observed, was based upon the appellee's liability as a common carrier, and not upon any written contract. But it was shown in evidence, and specially found by the jury, as a fact in their answers to interrogatories, that the shipment of appellant's hogs was made under three written contracts. It is settled by the decisions of this court, that where suit is brought against a common carrier to recover damages for the non-delivery of goods received by it for carriage, and the complaint merely alleges a breach of the common law duty of such carrier, if the evidence shows that the goods were received for carriage under a special written contract, which was not declared upon, the variance is fatal and the plaintiff can not recover. Indianapolis, etc., R. R. Co. v. Remmy, 13 Ind. 518; Jeffersonville, etc., R. R. Co. v. Worland, 50 Ind. 339; Lake Shore, etc., R. W. Co. v. Bennett, 89 Ind. 457; Hall v. Pennsylvania Co., 90 Ind. 459. As the appellant could not, in any event, under the evidence, have recovered upon the first paragraph of his complaint, the overruling of a demurrer to an answer thereto was an error, if any, which did the appellant no harm.

The eighth paragraph of the answer was addressed to the first, fourth, fifth and sixth paragraphs of the complaint. So far as it was intended as an answer to the first paragraph of the complaint, it is disposed of by what is said above respecting the ninth paragraph of answer. The thirteenth and fourteenth paragraphs of answer were directed to the fourth, fifth and sixth paragraphs of the complaint.

The fourth paragraph of the complaint charges that prior to the shipment of the hogs riots existed on the appellee's road, interfering with the movement of freight, and the appellant, being ignorant of their extent, applied to the appellee's agent at Lewisville, on July 21st, 1877, to ascertain if the appellee would ship his hogs from that place to East Liberty, notwithstanding said riots, and that the appellee, knowing the extent of said riots, delivered, by its agent, to the appellant a copy of a general order of the appellee addressed to its agents as follows:

"Richmond, Ind., July 20th, 1877.

"All Agents--You can now receive and forward stock and perishable freight for Pan-Handle and East via P. R. R.

(Signed) "J. F. Miller."

It is averred that upon receiving the above order, the appellant, by his agent, Thomas W. Hall, executed to the appellee the following written agreement:

"The undersigned hereby contracts, agrees and binds himself, and for the owners of the stock shipped in cars Nos. 5171, 4371, 5041, on the P., C. & St. L. R. R., at Lewisville, Indiana, station, on the 21st day of July 1877, to be transported to East Liberty by the Pittsburgh, Cincinnati and St. Louis Railway Company, in consideration of the said company agreeing to transport the said stock at the special rates and conditions given in local tariff, to load, unload, feed, water, and attend to the stock himself; and having examined the cars, to assume all risks of transportation, both as to the stock and the individual who may travel with such stock to attend to it, being all risks arising from any defect in the body of the cars, imperfect doors and fastenings, overloading, or from vicious and restive animals, delays, and all risk of the escape and robbery of any portion of said stock, or of loss or damage from any other cause or thing not resulting from defective trucks, wheels or axles. And it is hereby acknowledged that 24,000 pounds is the maximum weight allowed by the railroad company to be loaded in any one car. It is agreed that the company shall not be responsible for any delays at terminal points, nor for delays at points where stock is to be delivered to connecting lines, caused by their refusal or inability to receive it, after a tender of delivery has been made by this company. Signed at Lewisville, this 21st day of July, 1877.

"Witness: J. B. Guerin.

"T. W. Hall."

It is averred that on the faith of the said order the appellant shipped 265 hogs under said contract; that the appellee did not carry the hogs to East Liberty within a reasonable time, but transported them to Columbus, where they were stopped by the riots, unloaded, placed in unhealthy pens, and there kept for twelve days by the appellee, being ten days longer than usual, whereby sixty of the hogs died and others lost in weight, etc.

The fifth paragraph of the complaint is the same as the fourth, with the additional averments, that at Columbus the appellee's employees abandoned the train and uncoupled the cars; that there was a riot which originated between the Pennsylvania Railroad Company and the appellee on the one side and their employees on the other, and was occasioned by a reduction of wages; that appellee's employees were engaged in the riot; and that by reason thereof there was a delay of twelve days at Columbus.

The sixth paragraph of the complaint is the same as the fourth, except that the allegations as to the riot and the order signed by Miller are omitted; the breach averred being that the appellee did not within a reasonable time transport said hogs to East Liberty, but carried them to Columbus and placed them in unhealthy pens for ten days, etc.

The eighth paragraph of the answer alleges that the appellee within a reasonable time, carried the hogs to Columbus; "that at the time of the arrival of the train of the defendant containing said hogs at said Columbus, there was a violent, forcible and tumultuous riot prevailing at said city of East Liberty, to such an extent that the same was beyond the power and control of the civil and military authorities;" that the rioters were engaged in the destruction of the appellee's property, including its roadbed, depots, and rolling stock, so that it was unsafe and impossible to deliver the appellant's hogs at said East Liberty; that the rioters were not the agents or servants of the appellee; that by reason of the riot the appellant's hogs were necessarily detained at Columbus during the riot, which continued five days, and also detained seven days thereafter on account of the accumulation of freight; that the hogs were unloaded and put in pens and...