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

• Citation: 182 Ind. 398,105 N.E. 483
• Decision Date: 26 May 1914
• Docket Number: No. 21719.,21719.
• Court: Supreme Court of Indiana
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. BLIND.

182 Ind. 398

105 N.E. 483

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

v.BLIND.

No. 21719.¹

Supreme Court of Indiana.

May 26, 1914.

Appeal from Circuit Court, Benton County; J. T. Saunderson, Judge.

Action by Charles O. Blind against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and another. Judgment for plaintiff, and the defendant named appeals. Reversed, with instructions.Frank L. Littleton, of Indianapolis, and Chas. M. Snyder, of Fowler, for appellant. Daniel Fraser and Will Isham, both of Fowler, for appellee.

MYERS, J.

Action by appellee against arpellant and one Ross to recover damages for an alleged failure safely to carry and deliver a mare, the property of appellee, from Templeton, Ind., to Huntington, Ind. Appellee's complaint alleged that in September, 1909, he was the owner of a standard bred racing mare of the value of $1,500, and that appellant was a railroad corporation and common carrier for hire, and that its tracks extended through the town of Templeton, Ind., to the city of Huntington, Ind.; that on the 9th day of September, 1909-

“the defendant Frank Ross was a servant in the employment of the plaintiff, and had said mare in his possession as a horse groom of plaintiff, for the purpose of accompanying the mare from the town of Templeton, Ind., to the town of Huntington, Ind.; that he had no interest in the mare, except that he had the temporary possession of her as the agent and employé of the plaintiff, for the purposes aforesaid: that, pursuant to the directions he had given Ross, the latter delivered the mare to the defendant at Templeton, Ind., and on behalf of plaintiff demanded and required of defendant company, as a common carrier, to transport the mare, and Ross in the car, as a man in charge of her, from the town of Templeton to the city of Huntington; that the defendant undertook and agreed to transport the mare with safety and reasonable dispatch from Templeton to Huntington, and plaintiff, by Ross, placed the mare in one of the cars of defendant, furnished by it for that purpose, and paid and became indebted and obligated to pay the transportation charges on the mare to Huntington.”

Facts are alleged showing that the mare, when so being transported by appellant, was, by its negligence, killed, without fault or negligence on the part of appellee. It is also alleged that the defendant company-

“claimed said Ross shipped the mare in his own name, without disclosing to said defendant that plaintiff was his principal, but that said company well knew at and before it took possession of said mare that said mare was the property of plaintiff, and worth in the market on said day $1,500,” etc.

Ross filed a disclaimer. Appellant's demurrer to the complaint for want of facts was overruled, and it filed an answer in seven paragraphs, and the court sustained appellee's demurrer for want of facts to the first, second, and fifth of said paragraphs. There was a reply in general denial, and a plea of non est factum, to the answers, setting up a special contract of carriage, a demurrer to which, for want of facts, was overruled, and on the trial appellee had judgment for $1000. The reply of non est factum denied specifically the execution of the contract by appellee, or by any one by his authority. The errors assigned are in overruling the demurrer to the complaint, sustaining the demurrers to the first, second, and fifth paragraphs of answer, respectively, overruling the demurrer to the reply of non est factum, and in overruling the motion for a new trial.

[1] Appellant's first contention is that the complaint does not show any consideration on the part of appellee for the contract, inasmuch as it does not allege that appellee paid or tendered to appellant a sum of money equal to the rate established by law. The cases cited by appellant hold that the mere allegation that the contract was made upon full and sufficient consideration, without stating the particular facts in regard to this consideration, is not sufficient. However, in this case the complaint does not allege that there was a consideration, but states that appellee “paid and became indebted and obliged to pay the charges for transportation,” etc. This sufficiently states the particular facts to show that there was a consideration for the contract, in addition to the fact that we are bound to take notice of and presume that a schedule of rates had been fixed and filed with the State Railroad Commission, and posted as required by law as a condition precedent of the carriage, and, in analogy to the Interstate Commerce Act, the rate so fixed must be regarded as a sufficient consideration, and binding on both parties, and the demurrer was properly overruled as to that point, for that reason. Wabash, etc., Co. v. Priddy (1913) 101 N. E. 724, and cases cited; United States v. Standard, etc., Co., 155 Fed. 305, 313; Poor v. Chicago, etc., Co., 12 Interst. Com. R. 418.

The first paragraph of answer alleges reception of the mare for transportation from Ross without knowledge that she was the property of appellee, and carriage under a written contract, set out; hence there could be no recovery under the contract alleged in the complaint. The second paragraph sets up the receipt of the mare for carriage, and her carriage under a written contract, set out, limiting liability to $100, and offering to consent to judgment for that amount. The third paragraph alleges the carriage under a written contract based upon a consideration of 30 cents per 100 pounds, that three horses were shipped at the same time, under the same contract, at a gross weight of 11,000 pounds, and that such consideration was a sufficient consideration for the contract, and that it was fairly entered into after a bona fide opportunity to transport at a fair and reasonable rate, without limitation of liability, and that, in consideration of the reduced rate, it was agreed that the valuation of each animal would not exceed $100. The fourth paragraph is the same as the third, except that it alleges a provision that no claim shall be made unless a verified claim in writing is filed with the freight agent of appellant at Cincinnati, Ohio, within five days from the date the stock is removed, and that no such claim was filed. The fifth paragraph alleges the carriage under the written contract, and that, except for the act of February 27, 1905 (Burns 1908, § 5540), of the General Assembly, setting out the title, plaintiff would have been required to count upon the written contract, and had performed its conditions on his part, and alleging the breaches relied on, and that the act is unconstitutional. The sixth paragraph is the same as the fifth, with the exception that it relies upon the failure to count on the written contract. The seventh paragraph alleges the carriage under a written contract, that appellant had filed with the State Railroad Commission its classification of tariffs in force at the time, which were approved by the commission, and alleges that the special rates were based upon the execution of the contract, that higher rates would have been charged for unlimited liability; sets out the blank form of contract provided by the classification and tariff, that under the classification and tariff rate of freight on a horse is fixed both by weight and valuation upon an assumed weight of 5,000 pounds for the first, and 3,000 pounds for each additional horse, that the classification provided for all reasonable values and classes of animals, and that a rate may be based on an agreed value, that the unlimited liability rate was 10 per cent. higher, that the contract was executed after appellee had been given a bona fide opportunity to ship at the higher classification, and by the terms of the contract the maximum valuation was fixed at $100 for any one horse; and offers to confess judgment for that sum. It will be observed that it was an intrastate shipment.

[2] It is well settled that a common carrier may enter into a contract with the shipper by which its liability is limited in consideration of a reduced rate of transportation, provided the shipper is given a full, fair, and bona fide opportunity to ship under a higher rate, and with unlimited liability on the part of the carrier; but it is not necessary that the shipper should have actually been offered the opportunity of shipping at the higher rate, and under the carrier's common-law liability. If he had demanded it, that is sufficient. Cleveland, etc., Co. v. Hollowell, 172 Ind. 466, 470, 88 N. E. 680;Kansas City, etc., Co. v. Albers Commission Co. (1912) 223 U. S. 573, 32 Sup. Ct. 316, 56 L. Ed. 556;Deming v. Merchants', etc., Co., 90 Tenn. 327, 17 S. W. 93, 13 L. R. A. 518; Hutchinson on Carriers, § 404.

The whole scope, tenor, and apparent purpose of the state act is to make the rate fixed in the schedules, filed with the commission, or those fixed by the commission, or by the courts, the standard of reasonableness, and as based on a sufficient consideration. This seems to arise necessarily from the provisions of the act of 1907, under which this action arose, as shown by sections 5534, 5540b, 5541d, 5543c, 5545b, 5549. Burns 1908. The Elkins Act of 1903 (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1911, p. 1309]), with the wide scope of the Hepburn and Carmack Amendments of 1906 (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp St. Supp. 1911, p. 1307]), by which section 15, the rate section of the Interstate Commerce Act, was recast, furnished the basis of the state act of 1907, which was practically an adoption of the amended interstate Act, and we must assume with the constructions then placed upon it.

Upon analogy and the similarity of the state act to the Interstate Commerce Acts, it is sufficient that the rate has been fixed and filed, and notice of it posted. Wabash, etc., Co. v. Priddy, supra; Kansas City, etc., Co. v. Carl (1913) 227 U. S. 639, 33 Sup....