Evansville & T.H.R. Co. v. McKinney

• Decision Date: 10 January 1905
• Docket Number: No. 4,558.,4,558.
• Parties: EVANSVILLE & T. H. R. CO. v. McKINNEY.
• Court: Indiana Appellate Court

34 Ind.App. 402

73 N.E. 148

EVANSVILLE & T. H. R. CO.

v.McKINNEY.

No. 4,558.

Appellate Court of Indiana, Division No. 2.

Jan. 10, 1905.

Appeal from Circuit Court, Posey County; O. M. Welborn, Judge.

Action by Clate C. McKinney against the Evansville & Terre Haute Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John E. Iglehart, Edwin Taylor, and G. V. Menzies, for appellant. A. J. Clark and J. E. Williamson, for appellee.

ROBY, J.

Action for recovery of damages on account of injury to live stock delivered to appellant for transportation. Appellee had judgment for $1,000. The complaint was in two paragraphs, to each of which a demurrer for want of facts was overruled, such rulings being assigned as error. The parties are at variance as to the theory of the complaint, appellant claiming that it counts upon the breach of a written contract, and appellee that it counts upon the common-law liability of a common carrier. The shipper cannot set up a special contract for carriage and recover as upon the implied contract. Sanders v. Hartge, 17 Ind. App. 243-250, 46 N. E. 604;Jeffersonville, etc., v. Worland, 50 Ind. 339. Neither can he rely upon a parol agreement and recover upon proof of a written contract. Railway Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106;Railway Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138. The effect of theory ascribed to the pleading is not confined to the questions arising upon the demurrer to it, but extends throughout the case. It is averred in the first paragraph: That appellant was a common carrier. That appellee was the owner of a certain race horse of the value of $2,500. That another person was the owner of another certain horse. That appellee and said person entered into a contract with appellant by which it was agreed, in consideration that they would ship their horses from Evansville to Vincennes and return, a charge of $20 for the round trip would be made, $10 of which was to be paid by each of said parties. That the horses were safely carried and delivered at Vincennes, and the freight charges thereon were paid. That when appellee was ready to return, appellant operating the only line between said places, said horses were delivered to appellant, and it required appellee to sign a shipping contract, which was, so far as necessary to the purposes of this appeal, in terms as follows:

“Read This Contract.

“Evansville & Terre Haute R. R. and Associated Lines.

“Live Stock Contract.

“Liability limited to the declared valuation by shippers, but not to exceed the following:

+-----------------------------------------------------------------+
                ¦“Each horse or pony (gelding, mare or stallion) mule or jack¦$100¦
                +-----------------------------------------------------------------+
                

*******

“And in no event shall the carrier's liability exceed twelve hundred dollars per car.

“Agents are not permitted to receive or ship animals of a higher value than as stated above, unless by special agreement noted hereon, and a proper contract or release is signed by the owner or shipper thereof. And it is agreed between the owner and shipper of these animals and the said railway company, that in case of accident, resulting in injury to said animals, the value thereof shall in no case exceed the valuation named above.

“Shipments of live stock in car loads, or less than car loads, will only be taken at the rates named herein, after this contract or agreement shall have been signed by the Company's Station Agent and the owner and shipper, by which it is agreed and understood that such owner and shipper shall load, feed, water and take care of such stock at its own expense and risk, and will assume all risk of injury or damage that the animals may do themselves or each other, by kicking or gouging, suffocating, fright, burning of hay or straw or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold or by changes in weather, or delay caused by stress of weather, by obstruction of track, riots, strikes or stoppage of labor.

“J. B. Cavanaugh, General Freight Agt.

“Freight Office, Evansville & Terre Haute R. R. and Associated Lines.

“Vincennes Station, 10-14 1900 11 hour P. M.

“Received of C. McKinney 2 horses to be delivered to C. C. McKinney at Evansville Station, at the following rates: 2 horses $10.00 per car for horses.

“In consideration of which, and for other valuable considerations, and it is hereby mutually agreed that said company shall not be liable for loss of live stock by jumping from the cars, delay of trains not caused by negligence as aforesaid, or any damage said property may sustain, except such as may result from a collision of the train with other trains, or when the cars are thrown from the track in course of transportation, and in this case the company upon whose road the accident loss or damage shall occur shall be liable therefor, and no suit shall be brought or claim made, against any other company forming a part of the route, for such loss or damage (it being expressly understood and agreed that the responsibility of this railroad company shall cease upon delivery of said property to its connecting line, unless otherwise agreed to in writing, and signed by the respective parties hereto), and that the rules and regulations printed above are an essential part of this contract.

“Evansville & Terre Haute R. R. Co.

“By E. L. Cory, Agent.

“C. C. McKinney, Owner.”

It is further averred: That the $20 paid for transportation was the price appellant charged, and all that was asked or demanded by it. That appellee was not informed at any time of any other or different rate. That the valuation named in said contract was printed in the rules and regulations and arbitrarily fixed by appellant, and that appellee was required to sign said contract as the only condition on which appellant would ship said property. That it was the duty of appellant to receive and ship said property for reasonable hire, to wit, the sum of $10, which sum defendant demanded and the plaintiff agreed to pay. “That said...