Cincinnati, Indianapolis, St. Louis And Chicago Railway Company v. Case

• Decision Date: 27 February 1890
• Docket Number: 13,948
• Citation: Cincinnati, Indianapolis, St. Louis And Chicago Railway Company v. Case, 23 N.E. 797, 122 Ind. 310 (Ind. 1890)
• Parties: The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Case
• Court: Indiana Supreme Court

23 N.E. 797

122 Ind. 310

The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Case

No. 13,948

Supreme Court of Indiana

February 27, 1890

From the Benton Circuit Court.

Judgment affirmed.

D. E Straight and U. Z. Wiley, for appellant.

M. H Walker, I. H. Phares, D. Fraser, E. P. Hammond and W. B Austin, for appellee.

OPINION

Coffey, J.

This was an action by the appellee against the appellant to recover damages for negligent delay in shipping appellee's cattle from the town of Fowler to the city of Indianapolis.

So much of the contract under which the cattle were shipped as is material to the controversy here, is as follows:

"Fowler Station, December 11, 1885.

"Memorandum of agreement made and concluded this day by and between the Cincinnati, Indianapolis, St. Louis and Chicago Railway Company, of the first part, by the station agent at above-named station, and Jeffery, Herriott & Co., of the second part, witnesseth: That whereas, the said Cincinnati, Indianapolis, St. Louis, and Chicago Railway Company transport cattle, hogs, horses, pigs, sheep, lambs, calves, or other live stock only as per tariff in use at this date for stock per car loads, or when taken less than car loads, as per special rates published on the tariff prices: Now, in consideration that the said party of the first part will transport, for the party of the second part, such live stock at the rate of $ 22 per car load, or other valuable consideration, the said party of the second part does hereby agree to take the risk of injury which the animals, or either of them, may receive in consequence of any of them being wild, unruly, weak, escaping or maiming each other, or themselves, or from delays, or in consequence of heat, suffocation, or other ill effects of being crowded in the cars, or on account of their being injured by the burning of hay, straw, or other material used by the owner for feeding stock, or otherwise, and for any damages occasioned thereby; and also all risk for damages which may be sustained by reason of any delay in such transportation, and that he will see to it that the cattle, etc., are securely placed in the cars furnished, and that the cars are properly and safely fastened so as to prevent the escape of live stock therefrom.* * * And this agreement further witnesseth: That the said party of the second part has this day delivered to the said Cincinnati, Indianapolis, St. Louis and Chicago Railway Company three car-loads of cattle, to be transported to Indianapolis station, on the conditions above described.

R. Richmire, Station Agent.

"H. S. Case."

The complaint is based upon the above contract, and alleges, in substance, that on the 11th day of December, 1885, at the town of Fowler, the appellee delivered to the appellant, a common carrier of live stock for hire, fifty-one head of cattle to be carried by appellant for appellee, in three cars, from said town of Fowler to the city of Indianapolis, and there to be delivered for the appellee to Jeffery, Herriott & Co., who were commission merchants, and who were to sell said property for appellee; that appellee agreed to pay appellant $ 22 per car for transporting said cattle; that on delivery of said cattle as aforesaid, appellant executed and delivered to appelleea bill of lading for said cattle, a copy of which is filed with the complaint; that appellee performed all the conditions of said bill of lading on his part, but that appellant did not perform the conditions of said bill of lading on its part, in this, to wit: That said appellant after receiving said cattle on board its cars at the town of Fowler, without any fault on the part of the appellee, carelessly and negligently failed to move said cars, upon which said cattle were loaded, from 6 o'clock p. m., on the 11th day of December, 1885, until 4 o'clock a. m., on the 12th day of December, 1885; that if said cattle had been shipped by appellant when delivered, as they might have been by a train which then left for the city of Indianapolis, said cattle would have arrived at Indianapolis in good condition at 4 o'clock a. m. on December 12th, and would have been ready for the market on that morning, but in consequence of said delay in shipping they did not arrive at Indianapolis in time for the market on said day, which was Saturday, and in consequence thereof there was no market for said cattle until the following Monday; that between said Saturday morning and the Monday morning following, there was a fall in the price of cattle in said market of the sum of seven dollars on each head; that on account of the delay in shipping said cattle they were delayed in being fed for the period of eleven hours, by reason of which they became excited and unmanageable, and hooked, tramped upon and crowded each other, by reason of which fifteen head of said cattle were rendered wholly worthless, and all the others were rendered unsalable when they arrived at Indianapolis, for the period of one week; and by reason of all which appellee was damaged in the sum of $ 1,000.

The appellant filed a demurrer to this complaint for want of sufficient facts to constitute a cause of action, which was overruled, and it excepted.

Upon issues formed the cause was tried by a jury, who returned a verdict for the appellee.

Appellant moved in arrest of judgment, which was overruled, and an exception taken.

Appellant then filed its motion and reasons for a new trial, which was overruled and exception reserved.Judgment on verdict.

The first and second errors assigned here call in question the sufficiency of the complaint, and the third questions the propriety of the ruling of the circuit court in overruling the motion for a new trial.

The first objection to the complaint urged by the appellant, is that the contract upon which it is based is a contract between the appellant and Jeffery, Herriott & Co., and not a contract between the appellant and the appellee.

It is not denied by the appellee that the contract in suit appears upon its face to be a contract between the appellant and Jeffery, Herriott & Co., but it is contended that it appears by the complaint that the contract was in fact made with the appellee, for his benefit, in the name of Jeffery, Herriott & Co.If the complaint contained a direct allegation that the appellant made the contract with the appellee, under the name of Jeffery Herriott & Co., we would be relieved of any difficulty upon this...