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

• Decision Date: 11 June 1909
• Docket Number: No. 21,125.,21,125.
• Citation: 172 Ind. 466,88 N.E. 680
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. HOLLOWELL.

172 Ind. 466

88 N.E. 680

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

v.HOLLOWELL.

No. 21,125.

Supreme Court of Indiana.

June 11, 1909.

Appeal from Circuit Court, Hendricks County; John C. Robinson, Special Judge.

Action by Robert T. Hollowell against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Leonard J. Hackney and Frank L. Littleton, for appellant. Cofer & Dougan and Brill & Harvey, for appellee.

MONKS, J.

This action was brought by appellee against appellant to recover damages for an alleged breach of its common-law duty to safely carry and deliver a car load of sheep. The first paragraph alleged a contract to carry to Chicago, Ill. The second paragraph is the same as the first, except it alleged a contract to carry to Terre Haute, Ind., and there to deliver to another carrier, whose line ran from Terre Haute to Chicago, Ill. Appellant filed an answer to the complaint in four paragraphs; the first paragraph being a general denial. Appellee's demurrer for want of facts to the second, third, and fourth paragraphs of answer was sustained to the second and fourth paragraphs and overruled as to the third paragraph of answer. Trial by the court, special finding of facts made, and conclusion of law stated thereon in favor of appellee, and, over a motion for a new trial, judgment against appellant. The errors assigned and not waived call in question the conclusion of law and the action of the court in sustaining appellee'sdemurrer to the second and fourth paragraphs of answer. The second paragraph of the answer set out at length a written contract between appellant and appellee for the transportation of appellee's sheep, which limited appellant's common-law liability and alleged that the said contract was the sole and only contract for the transportation of said sheep. The fourth paragraph of answer was substantially the same as the second.

It is insisted by appellant that the action of the court in sustaining the demurrer to the second and fourth paragraphs of answer was erroneous for the reason that the act of 1905 (Acts 1905, p. 58, c. 47, being sections 3918-3920, Burns' Ann. St. 1908), entitled “An act relative to the liability of common carriers and prescribing the practice and procedure and fixing the burden of proof in certain cases,” is in violation of that part of section 22, art. 4, of the Constitution of this state, which forbids the enactment of laws “regulating the practice in courts of justice,” and therefore void, and for the further reason that it is in violation of the fourteenth amendment of the Constitution of the United States. Before the taking effect of said act of 1905 (Acts 1905, p. 58, c. 47), it had been uniformly held by this court that when a shipper sues on the common-law liability, and it appears that there was a written contract, the shipper could not recover, on account of failure of proof. Section 402, Burns' Ann. St. 1908, and notes; section 396, Burns' Ann. St. 1901, and notes; Barlett v. Pittsburg, etc., Co., 94 Ind. 281, 284;Indianapolis, etc., R. Co. v. Remmy, 13 Ind. 518;Jeffersonville R. Co. v. Worland, 50 Ind. 339;Lake Shore, etc., R. Co. v. Bennett, 89 Ind. 457, 471;Hall v. Pennsylvania R. Co., 90 Ind. 459;Snow v. Indiana, etc., R. Co., 109 Ind. 422, 426, 9 N. E. 702;Pennsylvania R. Co. v. Walker, 29 Ind. App. 285, 64 N. E. 473;Parrill v. Cleveland, etc., R. Co., 23 Ind. App. 638, 55 N. E. 1026;Stewart v. Cleveland, etc., R. Co., 21 Ind. App. 218, 226, 52 N. E. 89;Indianapolis, etc., R. Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138;Baltimore R. Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106;Sanders v. Hartge, 17 Ind. App. 243, 46 N. E. 604. This was only an application of the rule that, where an oral or implied contract is declared upon, no recovery can be had upon a written contract, and, where a written contract is sued upon, no recovery can be had upon an oral or implied contract. Paris v. Strong, 51 Ind. 339;Jeffersonville, etc., R. Co. v. Worland, 50 Ind. 339;Sanders v. Hartge, 17 Ind. App. 243, 250, 252, 46 N. E. 604, and cases cited; Pennsylvania R. Co. v. Walker, 29 Ind. App. 285, 64 N. E. 473; 4 Ency. Pldg. & Prac. 922-927. It was uniformly held however that such defense was provable under the general denial. Indianapolis, etc., R. Co. v. Remmy, supra; Baltimore, etc., R. Co. v. Ragsdale, 14 Ind. App. 411, 42 N. E. 1106;Crum v. Yundt, 12 Ind. App. 308, 40 N. E. 79;Sanders v. Hartge, 17 Ind. App. 251, 46 N. E. 604. The error, if any, in sustaining a demurrer to a pleading, is harmless, if no more evidence is required to establish the cause of action or defense alleged under a paragraph left in the record than would have been required under the paragraphs held bad. Field v. Noblett, 154 Ind. 357, 361, 56 N. E. 841;Hormann v. Hartmetz, 128 Ind. 353, 354, 27 N. E. 731. As the same defenses could be made and evidence given under the general denial, which was left in the record as under the paragraphs held bad, the error, if any, in sustaining said demurrer, was harmless.

The law charges the common carrier with the duty of carrying all goods of the kind he professes to carry under the common-law liability, which makes him a practical insurer of the safety thereof while in his custody. The owner may rightfully demand that such property shall be received and carried under the carrier's common-law liability, and a contract limiting such liability, to which he is obliged to assent in order to secure transportation, cannot be...