Davis v. Chi., R. I. & P. Ry. Co.

• Decision Date: 01 June 1891
• Citation: 49 N.W. 77,83 Iowa 744
• Court: Iowa Supreme Court
• Parties: DAVIS v. CHICAGO, R. I. & P. RY. CO.

83 Iowa 744

49 N.W. 77

DAVIS

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

June 1, 1891.

Appeal from district court, Marion county; A. W. WILKINSON, Judge.

Action to recover the value of certain clothing and other property taken from a trunk which plaintiff checked from Massillon, Ohio, to Knoxville, in this state, having purchased a railroad ticket for transportation between these points by a route including defendant's railroad. A judgment was rendered upon a verdict for plaintiff. Defendant appeals.T. S. Wright and Stone & Gamble, for appellant.

BECK, C. J.

1. Plaintiff's original petition is in two counts; the first alleging the purchase of a through ticket from Massillon, Ohio, over the Wheeling & Lake Erie, the Baltimore & Ohio, and the Chicago, Rock Island & Pacific Railroads, and that defendant issued to her a check for her trunk, containing the property taken from it, which secured its transportation over the route contemplated by the ticket. This count alleges the delivery of the trunk to defendant in good condition, and the receipt from defendant of the check. The second count differs from the first in alleging that plaintiff paid defendant for her ticket, and delivered to defendant her trunk, which it accepted, and delivered to her the check. The defendant denies the allegation of the petition, and as a further defense alleges that under the conditions of the ticket upon which plaintiff traveled the liability of defendant was limited to $100 for loss of wearing apparel from her trunk. The court instructed the jury in effect that defendant is liable in this action only in case the property was lost while it was in the possession of defendant, and that no liability attached to defendant for loss of property prior to its receipt by defendant. There was evidence tending to show that when the trunk was received by defendant at Chicago it was in good condition, and the loss occurred while it was in defendant's possession. The jury found for plaintiff thereon, and defendant moved in arrest of judgment, on the grounds, among others, that the petition does not allege that the trunk, when it came into the possession of defendant, contained the property alleged to have been lost, nor that the property was lost through the negligence of defendant, its servants or agents, while the trunk was in transportation on defendant's road. Therefore plaintiff, with leave of the court, amended her petition, supplying allegations, the absence of which are the grounds of the motion in arrest just stated. The court overruled a motion to strike this amendment on the ground, among others, that it was not filed in time, but after the verdict. This motion was overruled.

2. The instructions of the court to the jury to the effect that the defendant is not liable for loss happening before the trunk came into its hands are not in harmony with rulings of this court. See Beard v. Railway Co., 79 Iowa, 528, 44 N. W. Rep. 803;Peterson v. Railway Co., 80 Iowa, 92, 45 N. W. Rep. 573. But the instruction given the jury is the law of the case, which the jury was required to obey, and the court to consistently follow. Under the rules of these instructions the verdict cannot be sustained, for it was not supported by allegations of the petition showing liability under the rules of the instructions. Upon the issues as to the condition of the trunk when it was received by the defendant at Chicago, and consequently as to the fault and negligence of the defendant and its employes, though not raised by the pleadings, there was evidence introduced by both parties. Indeed, it was contested as though it had been raised in the pleadings. It is a case where the evidence does not conform to the pleadings,--where there is variance between the pleadings and the proof. Code, §§ 2686, 2689, provide that in such case the pleadings at any time may be amended, in furtherance of justice, in conformity with proof. Such amendments may be after verdict and judgment. Thomson v. Wilson, 26 Iowa, 120;Smith v. Howard, 28 Iowa, 51; Tegler v. Shipman, 33 Iowa, 195. Amendments may be made after judgment. O'Connell v. Cotter, 44 Iowa, 48. Amendments are allowed with liberality. “The rule is to allow them; to refuse them, the exception.” Pride v. Wormwood, 27 Iowa, 257;Hinkle v. Davenport, 38 Iowa, 355; Miller v. Perry, Id. 301. Many other decisions of this court, substantially to the same effect, could be cited. Eikenberry v. Edwards, 67 Iowa, 14, 24 N. W. Rep. 570, cited by defendant's counsel, is not in conflict...