Chesapeake & O. Ry. Co. of Indiana v. Jordan
| Citation | 63 Ind.App. 365,114 N.E. 461 |
| Decision Date | 21 December 1916 |
| Docket Number | No. 9163.,9163. |
| Court | Court of Appeals of Indiana |
| Parties | CHESAPEAKE & O. RY. CO. of INDIANA v. JORDAN. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Delaware County; Myron H. Gray, Judge.
Action by Seward W. Jordan against the Chesapeake & Ohio Railway Company of Indiana. From a judgment for plaintiff, defendant appeals. Affirmed.Henry C. Starr, of Richmond, and Warner & Warner and McClellan, Hensel & Guthrie, all of Muncie, and Robbins, Starr & Goodrich, for appellant. Ward Marshall and Koons & Koons, all of Muncie, for appellee.
This is a suit to recover damages for failure to furnish transportation, and to safely transport certain live stock from Medford, Ind., to Chicago, Ill. The complaint was in three paragraphs, which was answered by a general denial and by a second paragraph of special answer. Appellee filed a reply to the second paragraph of answer in four paragraphs, the first of which was a general denial. The case was tried by a jury, and a verdict returned for $500. Also answers to interrogatories. Appellant's motion for a new trial and for judgment on the answers of the jury to interrogatories were overruled, judgment was rendered for appellee on the general verdict, and this appeal prayed and granted.
Appellant has assigned as error the overruling of its separate demurrer to each paragraph of the complaint; the overruling of its separate demurrer to each of the second, third, and fourth paragraphs of reply to the second paragraph of its answer; the overruling of its motions for a new trial and for judgment on the answers of the jury to the interrogatories, and the overruling of its several motions to require the jury to return to its room and to more definitely and correctly answer certain interrogatories designated in the motion.
Omitting the formal allegations about which there is no controversy, the first paragraph of complaint, in substance, charges that on January 11, 1912, appellee tendered to appellant at its station at Medford 325 sheep for shipment to Chicago, Ill., and offered to pay the reasonable and established charges for such shipment; that appellant failed and refused to so transport the sheep within a reasonable time, although it could have done so, and did not ship the same until January 16, 1912; that appellant then agreed to safely transport the sheep to Chicago within a reasonable time, but did not issue appellee any bill of lading or receipt therefor, and wholly failed to transport the sheep within a reasonable time, by reason of which the sheep became emaciated, sick, and crippled and some of them died, and the market declined during the delay, the details of which are alleged, by reason of all which appellee was damaged in the sum of $700, for which he demands judgment.
The second paragraph is substantially like the first, and differs only in details which are not important in deciding the questions presented for decision.
The third paragraph contains substantially the same general allegations as the other paragraphs, and charges that on January 16, 1912, appellee delivered to appellant at Medford, Delaware county, Ind., 325 fat sheep to be transported to Chicago, Ill., and appellant then and there received them for such shipment, and agreed to safely transport them to Chicago, but did not issue to appellee any receipt or bill of lading therefor; that the sheep were loaded at Medford at 9 o'clock a. m. on January 16, 1912, and were not delivered at the stockyards in Chicago until 6 o'clock p. m. January 18, 1912, and were negligently kept in said cars all said time, or 57 consecutive hours, without food, water, or rest, in violation of the federal statute duly enacted and in force from and after June 29, 1906, which provides, in substance, that any railway company or common carrier shall not confine any cattle, sheep, or other animals in cars for more than 28 consecutive hours without unloading them in a humane manner into properly equipped pens for rest, water, and feeding, for at least 5 consecutive hours, unless prevented by storm, etc., provided, on the written request of the owner or custodian, the time may be extended from 28 to 36 hours; that neither appellee nor any custodian of said sheep signed any such request; that said sheep were given no rest, food, or water during the time aforesaid, which was exclusive of the time consumed in loading and unloading, and by reason thereof they were almost starved, lost flesh, were greatly reduced in weight and became unsightly in appearance, and some of them were crippled and others dead and missing; that owing to the negligence of appellant in so confining said sheep for the time aforesaid, they deteriorated in value $380; that the value of sheep not delivered was $56; that the sheep that died on account of the neglect aforesaid were of the value of $45, and the loss in the sheep crippled amounted to $25-for all of which appellee demanded damages in the sum of $700.
The memoranda accompanying the demurrer to the complaint states, in substance: (1) That neither paragraph sets out a copy of the bill of lading or contract covering the shipment, and the averments show it was an interstate shipment, and governed by the federal law, and not by the laws of the state of Indiana, and therefore insufficient without a copy of such bill of lading or contract; (2) that the allegations fail to show that appellee made due application for cars, as required by the statute; that it is not shown that appellant failed or refused to issue a receipt or bill of lading for the sheep, or that appellee made demand for such receipt or bill of lading.
[1][2] Appellant urges the proposition that each paragraph shows the shipment was interstate and governed by the Carmack Amendment to the Hepburn Act, which requires the issuance of a receipt or bill of lading by the carrier, the issuance of which cannot be waived; that the liability, if any, is based upon a breach of the contract evidenced by such receipt or bill of lading, without which the complaint is insufficient, unless it appears that demand was made for such receipt or bill of lading by the shipper and refused by the company. The complaint does not purport to state a cause of action under the statute, though it does appear in each paragraph that the shipment was interstate. It has been held that there may be a cause of action for damages, under the common law, against a common carrier for its negligence or wrongful acts resulting in damages or loss to the shipper of an interstate shipment, notwithstanding the federal statute governing such shipment. According to the averments appellant accepted the live stock for shipment, and failed to issue any receipt or bill of lading therefor to the shipper. United States Statutes at Large (vol. 34, p. 595 [U. S. Comp. St. 1913, § 8592]) provides:
“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”
The statute clearly imposed on the carrier the duty of issuing the receipt or bill of lading, and it cannot shield itself from liability by a failure to discharge a statutory duty. Each paragraph states a cause of action under the common law. Toledo, etc., R. Co. v. Milner, 110 N. E. 756, and cases cited.
[3] The assignment that the court erred in overruling appellant's motion for judgment on the answers of the jury to the interrogatories is waived by failure to present any point or proposition relating thereto in appellant's briefs.
[4][5][6] The second paragraph of answer to each paragraph of complaint admits the shipment by appellant of the sheep from Medford, Ind., as alleged, but avers that it then had two rates for the shipment of such live stock, one of which applied when shipments were made under its uniform live stock contract, and the other a higher rate used when shipments were made without such contract, whereby the shipper became subject to the liability imposed by the common law and the federal and state statutes applicable thereto; that at the time of the shipment aforesaid these rates were evidenced by appellant's rate sheets, or tariffs, filed with the Interstate Commerce Commission and published according to law; that appellee was entitled to ship at either of said rates, and then and there did ship, at the lower rate, in compliance with the conditions of appellant's Uniform Live Stock Contract, or at 13 cents per hundredweight for 42,000 pounds, amounting to $54.60; that appellant, on January 16, 1912, the day of the shipment, was ready and willing to issue such Uniform Live Stock contracts, but appellee failed to call for them at the freight office he the city of Muncie, Ind., at which office he made his request for cars, and did not call therefor until March 15, 1912, when appellant's agent issued to him three of such contracts, one for each carload...
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