Cleveland, C., C. & St. L. Ry. Co. v. Hayes

• Decision Date: 05 June 1913
• Docket Number: No. 21,616.,21,616.
• Citation: 181 Ind. 87,102 N.E. 34
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. HAYES et al.

181 Ind. 87

102 N.E. 34

CLEVELAND, C., C. & ST. L. RY. CO.

v.HAYES et al.

No. 21,616.

Supreme Court of Indiana.

June 5, 1913.

Appeal from Circuit Court, Decatur County; Marshall Hacker, Judge.

Action by Cephas S. Hayes and another against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

*36Davison Wilson, of Greensburg, and Carter & Morrison, of Shelbyville, for appellant. Hugh Wickens and John E. Osborn, both of Greensburg, for appellees.

MYERS, J.

Action by appellees against appellant for damages alleged to have been sustained upon shipment of a car load of mules from Greensburg, Ind., to Atlanta, Ga., January 14, 1907.

The complaint is in four paragraphs. The first and third count upon a common-law liability, while the second and fourth count upon a shipment under a written contract, made an exhibit of each of those paragraphs. No question is presented as to the complaint.

Appellant filed four affirmative paragraphs of answer, to the fourth and fifth of which demurrers for want of facts were sustained. A paragraph in general denial was also filed. The second paragraph of answer counts upon the same contract as the second and fourth paragraphs of complaint, a general bill of lading for the shipment of the mules from Greensburg, Ind., to Atlanta, Ga., by one Hamilton, who was made a defendant and filed a disclaimer, it being alleged in each paragraph of the complaint that immediately after the bill of lading was issued to Hamilton as consignee he had sold the mules to appellees before they were injured, though it is alleged in each of the two paragraphs counting upon the written contract that Hamilton delivered the mules to appellant for and consigned to appellees, and in the contract itself is a clause wherein appellees by name acknowledge their option to ship on a limited liability contract, in which respect the copy of the contract set out in appellant's brief does not correspond to the copy in the record, or the copy relied on by appellant.

The exhibit, with the complaint, sets out a written memorandum signed by Hamilton, directing the delivery of the mules to appellees. This memorandum is not set out as a part of the exhibit filed by appellant. There is also a discrepancy between the contract as set out by plaintiffs and the one counted on by appellant, in that in the copy set out by the latter, with its answer, is a copy of assumption by Hamilton, as man in charge, of all risk of injury in transportation, which is omitted from appellees' exhibit.

The basis of the defense under the second paragraph of answer is (a) that the contract was fair and freely entered into by Hamilton after he had been given a bona fide and full opportunity to ship at a fair rate, without limitation of the common-law liability by which he secured a less rate, alleging it to be the kind of contract usually made, and the consideration the agreement to transport according to the terms of the contract, and that the latter was reasonable; (b) that by the terms of the contract a verified claim for damages was required to be made within five days from the time the stock was removed from the cars, and that such claim was not filed; (c) that the damages arose from overloading, crowding, kicking, suffocating, and fright, which were released by the terms of the contract.

The third paragraph is the same as the second, except that it omits any allegations of damages from “overloading, crowding, kicking, suffocation, and fright,” but avers that appellant did not undertake to carry beyond Cincinnati.

The fourth paragraph is the same as the third, except that it alleges that it only undertook to carry to Cincinnati, and there deliver to a connecting carrier, known by the terms of the contract as the Queen & Crescent Line, and that appellant had no line beyond Cincinnati, and the other line did connect Atlanta and Cincinnati, and that it delivered the stock in good condition to the connecting carrier, and that no loss or injury occurred while in appellant's possession, and that they were afterward injured, if at all, and that appellant did not undertake or contract for the negligence of another carrier, and that the clause of the Interstate Commerce Act attempting to make it responsible is invalid, because (a) it deprives appellant of its property without due process of law, and (b) it attempts to take its private property from it without its consent and give it to another.

The fifth paragraph is the same as the fourth, except that it alleges that “Hamilton selected the route over and by which said mules were to be shipped after they left defendant's road.”

The errors relied upon are the action of the court in sustaining demurrers to the fourth and fifth paragraphs of answer.

[1] It has long been the settled rule prior to the going into effect of the Act of 1905 (Acts 1905, p. 58) that where a complaint, as the first and third paragraphs, counts upon an oral contract of shipment of property it may be shown under the general denial that it was under a written contract and defeat recovery. Snow v. Indiana, etc., Co., 109 Ind. 422, 426, 9 N. E. 702;Bartlett v. Pittsburgh, etc., Co., 94 Ind. 281;Hall v. Pennsylvania Co., 90 Ind. 459;Lake Shore, etc., Co. v. Bennett, 89 Ind. 457, 471;Jeffersonville Co. v. Worland, 50 Ind. 339;*37Indianapolis, etc., Co. v. Remmy, 13 Ind. 518;Pennsylvania, etc., Co. v. Walker, 29 Ind. App. 285, 64 N. E. 473;Parrill v. Cleveland, etc., Co., 23 Ind. App. 638, 55 N. E. 1026;Stewart v. Cleveland, etc., Co., 21 Ind. App. 218, 226, 52 N. E. 89;Sanders v. Hartge, 17 Ind. App. 243, 46 N. E. 604;Baltimore, etc., Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106;Indianapolis, etc., Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138. This was only an application of the rule that where an oral or implied contract is declared on there can be no recovery upon a written contract, and whenever a written contract is sued on recovery cannot be had upon an oral or implied contract. Paris v. Strong, 51 Ind. 339; Pennsylvania, etc., Co. v. Walker, supra; Sanders v. Hartge, supra; 4 Encyc. Pl. & Pr. 922-927.

We have recently held the act of 1905 superseded by the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), as applied to interstate shipments. Wabash Ry. Co. et al. v. Priddy et al. (1913) 101 N. E. 724, No. 21,970, at last term.

As to the facts set up in the fourth paragraph, they were such and such only as the contract itself disclosed, except the fact that appellant had no line of its own from Cincinnati to Atlanta, and as to the fifth paragraph the only facts alleged which were not disclosed by the contract itself were that appellant's line did not reach Atlanta, and that Hamilton routed the shipment after it left appellant's line; but with the contract in evidence these facts could have been shown under it, and under the general denial, if they constituted a defense, under the rule that anything may be shown under that plea which will disprove what a plaintiff is bound to show, and if under the contract there was no liability, under those facts a defense would be made out, so that there could be no reversible error in sustaining the demurrers to those answers.

Upon the motion for a new trial complaint is made of the giving of instructions Nos. 2, 3, and 4, requested by appellees. It is conceded by appellant that these instructions present the one question whether the Interstate Commerce Act, in fixing liability upon the primary carrier, violated the fifth and fourteenth amendments to the federal Constitution, as depriving appellant of its property without due process of law.

Instruction No. 2 is to the effect that, as the property involved in this suit was transported from a point in one state to a point in another state, this would constitute interstate commerce, and the liability and duty of the railroad company in regard to such shipment is regulated by the law of the United States, and that the act of Congress is as follows, and sets out the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]).

The third instruction informs the jury that if it finds that appellant received the mules for shipment from one state to another, it was liable for any loss, damage, or injury caused by appellant, or by any other carrier over whose line the shipment passed, whether such loss, damage, or injury occurred on appellant's line or on the line of some other carrier between the two points.

The fourth instruction defines the duties prescribed by the act of Congress in regard to common carrier feeding, watering, and resting animals in shipment, and quotes section 1. Act of Congress June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1911, p. 1341).

The objection urged to these instructions involves the validity of the act, the grounds of objection being stated thus, with reference to all three, as raising the same question: (1) Because it assumes to make the appellant, as the initial carrier, liable for the wrongful act or default of the connecting carriers which were not the agents of appellant, and over which the appellant had no control. (2) Because it assumes to make the appellant, as the initial carrier, liable for a loss occasioned by the connecting carriers, and against which loss the appellant expressly contracted it should not be liable. (3) Because it assumes to make the appellant, as the initial carrier, liable for a loss occasioned by the act of God or the public enemy, while the property was in the possession and control of connecting carriers. (4) Because it assumes to make the appellant, as the initial carrier, liable for a loss occasioned by a connecting carrier, and assumes to give the appellant the right to recover from such connecting carrier the amount of the judgment obtained by the appellees against the appellant; but if the...