Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Rudy
| Decision Date | 23 November 1909 |
| Docket Number | 21,570 |
| Citation | 89 N.E. 951,173 Ind. 181 |
| Parties | Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Rudy et al |
| Court | Indiana Supreme Court |
From Delaware Circuit Court; Joseph G. Leffler, Judge.
Action by the Cleveland, Cincinnati, Chicago and St. Louis Railway Company against Clayton H. Rudy and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under § 1394 Burns 1908, subd. 2, Acts 1901, p 565, § 10.
Reversed.
Thompson & Thompson, for appellant.
Bingham & Long, for appellees.
Appellee Clayton H. Rudy, by special contract in writing, contracted with the Oregon Short Line Railway for the transportation of a carload of horses from Lima, Montana, to Peoria, Illinois, and with the appellant, by a like contract for the transportation of the same horses from Peoria, Illinois, to Yorktown, Indiana, and this action was brought by appellant against all of the appellees, on the contract made, to recover the freight charges. There was a general denial to the complaint by each of the defendants. Each also filed two paragraphs of what are denominated answer and counterclaim, which were challenged by demurrer. The demurrer being overruled, both an answer to the pleading as a counterclaim and a reply to it as an answer were filed, the cause was submitted to a jury for trial, and a general verdict returned in favor of "all the counterclaimants," assessing their damages at $ 650. Appellant filed a motion for a new trial, and pending this motion the appellees Montezuma and Parker F. Rudy filed what is called a disclaimer, in which they disclaimed any interest in the subject-matter of the controversy, and consented to the rendition of judgment upon the verdict in favor of appellee Clayton H. Rudy. Appellant moved to strike out and reject this disclaimer, which motion was overruled. Appellant's motion for a new trial was then overruled, and judgment was rendered on the verdict, without further objection or exception from appellant, in favor of the appellee Clayton H. Rudy.
Among the many questions presented by the record and discussed by appellant in its brief, is the question of the sufficiency of the second and third paragraphs of the answer and the counterclaim. These pleadings in form are truly exceptional. The introductory part of each paragraph--and they are substantially alike in all their allegations--is as follows:
No facts are averred in either paragraph of counterclaim showing any right of action whatever in favor of either Montezuma or Parker F. Rudy. Both paragraphs allege that Clayton H. Rudy was the sole owner and shipper of the horses, and his claim to recover damages is predicated upon the injury to the animals in transportation, through the negligence of appellant in discharging its duty as a common carrier in respect thereto. But while the facts pleaded show no grounds of counterclaim in favor of Montezuma and Parker F. Rudy, they do state facts which constitute a complete defense to appellant's complaint against them severally. The facts stated in these paragraphs of the pleading show that they neither shipped nor owned the horses transported by appellant, and were not in anywise bound to appellant by contract, express or implied, for the freight thereon. These facts could have been proved under the answer of general denial, but that circumstance would not affect the question of the correctness of the ruling of the court on the demurrer to these paragraphs of the answer, if it can be treated as a separate answer of these two parties.
The pleadings are attacked by appellant upon the ground that they are the joint counterclaims of all three of the defendants, and that as neither paragraph states a cause of action in favor of Montezuma or Parker F. Rudy they are bad, and if the premise that they are joint counterclaims is correct, there was manifest error in overruling the demurrer to them.
The law is so well settled in this State that a pleading filed by a party to a suit cannot be made to perform the double office of an answer and a counterclaim, that we do not deem it necessary to cite the cases holding this to be the law. It is also the settled rule that the court will determine the character of a pleading, whether it is an answer or a counterclaim, not by what the pleader calls it, but by the facts which it contains and the character of relief sought. The first rule has always been applied to a pleading filed by the same party or parties, and not where it is filed by different parties as a several plea for each of them.
This pleading is a judicial novelty, in that while it purports to present but one statement of facts, these facts are pleaded by each defendant severally and ostensibly for himself, but for no other apparent purpose than to strengthen the claim of Clayton H. Rudy, and show the nonliability for costs of Montezuma and Parker F. Rudy. It is alleged that the horses were the property of Clayton H. Rudy, shipped by and for him, and accompanied by Montezuma, and that all notices, demands and agreements, that arose and became necessary during the transit, were made by Montezuma for and on behalf of Clayton H. Rudy; that the damages to the horses, resulting from the negligence complained of, accrued to Clayton H. Rudy, and the general prayer is that he have judgment for the sum found due him as damages, and the other two have judgment for costs and all proper relief. This form of pleading should not be permitted by the trial court, but its analysis unmistakably shows that, in substance and effect, it is the counterclaim of Clayton H. Rudy, and the argumentative answer in denial of the other two, and, while offensive to every recognized rule of pleading, does not afford a sufficient reason for a reversal of the judgment.
The counterclaim is also attacked as the separate counterclaim of Clayton H. Rudy, in that it reveals that his rights are based upon a contract which, as affirmatively shown, he has failed to comply with in these respects: In that he failed to pay the freight charges on the horses claimed to have been injured in the transportation, and in that he failed to file his verified claim, in writing, with the appellant's freight claim agent, at his office in Cincinnati, within five days from the time the horses were delivered to him, as required by the terms of the contract set forth in the counterclaim.
Appellee Clayton H. Rudy's right of action, set up in his counterclaim for damages done his property through the failure of appellant to perform its obligation as a common carrier, did not in anywise depend, as a condition precedent, on his payment of the freight charges. The right of appellant to sue for the freight, and the right of said appellee to sue for his damages, were independent of each other. Appellant would have no more right to insist that said appellee should pay the freight before he could maintain an action for damages done to his property in carriage than said appellee could insist that appellant pay the damages to the property before it could maintain an action for the freight. The suits would, in each case, be brought, not for the enforcement of the contract, but for its breach.
The condition in the contract set up in the counterclaim--that a verified written claim for damages should be filed with ap...
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