Gibson v. Adams Express Co.
| Decision Date | 19 December 1919 |
| Docket Number | 32363 |
| Parties | SAM R. GIBSON, Appellee, v. ADAMS EXPRESS COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Shenandoah Superior Court.--G. B. JENNINGS, Judge.
ACTION for damages to a car of horses shipped in a palace horse car of defendant from Shenandoah, Iowa, to East Buffalo, New York. Verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
Denver L. Wilson and Thomas W. Keenan, for appellant.
Ferguson Barnes & Ferguson, for appellee.
Plaintiff brings this action to recover damages to a shipment of horses from Shenandoah, Iowa, to East Buffalo, New York. The car in which the horses were shipped left Shenandoah at 2:40 P. M., on March 2, 1917, and arrived at destination between 1 and 2 o'clock A. M., March 5th. It is alleged in the petition that the usual and ordinary time consumed in the transportation of a car from Shenandoah to East Buffalo by the route followed is 28 hours.
The particular negligence charged is unusual and extraordinary delay, rough handling, and unnecessary exposure of the horses to cold and snow, resulting in serious damage thereto by rendering them unfit for market, and necessitating the sale thereof at much less than they would have brought, but for the negligence of defendant. The defendant answered, admitting some delay in the transportation of the car, but denied that the horses were damaged en route, and averred that the delay was due to storms and other causes wholly beyond the control of defendant; that it became necessary to unload the horses at Cleveland for feed, rest, and water, under the provisions of the Federal law; and that, if the horses were exposed to excessive cold, or were not properly fed, it was due to the negligence of the plaintiff. Defendant also averred that the shipment was made under the terms of two written contracts, referred to as Exhibits A and B, attached to the petition without further reference thereto, except the allegation that they were on file in the office of the secretary of the interstate commerce commission, and approved thereby. We will later refer to some of the provisions of these instruments.
I. Many rulings of the court below are complained of, most of which relate to alleged errors in the instructions given. The point is also made that the court erroneously submitted the case to the jury under the state statute; whereas, under the facts disclosed, the case was controlled by the law of Congress. No instructions were requested by defendant, nor objections or exceptions taken to any part of the charge until five days after the verdict was filed. No motion for new trial was filed, and the written exceptions and objections to the instructions were never called to the attention of, or passed upon by, the trial court. Owing to the fatal illness of the judge who presided at the trial, which followed shortly thereafter, he was never apprised of the filing of the objections referred to. Counsel for appellee challenges the right of plaintiff to have the alleged errors in the instructions reviewed by this court, for the reason that they were not called to the attention of, or passed upon by, the lower court. The contention here made will be first considered in this opinion; and in this connection, we desire, at the outset, to refer to the statutes heretofore in force, and the practice adopted thereunder by this court.
Prior to the enactment of Section 3705-a of the Supplement to the Code, 1913, exceptions to instructions given were taken and preserved, if before verdict, under Code Section 3707, and, if after verdict, under Section 3709 of the Code of 1897. The first of the above sections made it the duty of the shorthand reporter to note exceptions to instructions given, but the grounds thereof did not need to be stated. The latter section, however, required exceptions to the charge as a whole, or any part thereof, to be filed within three days after the verdict and to specify the part of the charge or instructions objected to, and the ground thereof. The above sections of the Code, so far as the same related to instructions given by the court, were repealed by the thirty-fifth general assembly (Section 3705-c). As we do not have to deal, in this opinion, with instructions requested and refused, we omit reference to the provision of the above sections of the statute relating to the refusal to give the same and express no opinion as to whether same was repealed by Section 3705-c or not. Nor have we considered Section 3708 of the Code in this connection. Section 3705-a required all objections or exceptions to instructions to be made before they were read to the jury, and to point out the grounds thereof specifically and with reasonable exactness. Provision was also made for filing exceptions after verdict, upon a proper showing that the error was not discovered before the charge was read to the jury. This section was repealed by Chapter 24, Acts of the Thirty-seventh General Assembly, which provides that:
"Either party may take and file exceptions to the instructions of the court or any part of the instructions given or to the refusal to give any instructions as requested within five days after the verdict in the cause is filed or within such further time as the court may allow and may include the same or any part thereof in a motion for a new trial, but all such exceptions shall specify the part of the instructions as excepted to, or of the instructions asked and refused and objected to, and the grounds of such objections."
This case was tried after the enactment of the foregoing chapter, which was the only provision in force at the time of the trial prescribing the method and the time of taking and preserving exceptions and objections to instructions. It is the well-settled rule in this state that rulings of the lower court, complained of upon appeal, will be reviewed and considered only if it appears from the record that same was called to the attention of and passed upon by the trial court, and proper exception taken and preserved thereto. State v. O'Donnell, 176 Iowa 337, 351, 157 N.W. 870; Scott v. Chicago, R. I. & P. R. Co., 160 Iowa 306, 141 N.W. 1065; Clement, Bane & Co. v. Drybread, 108 Iowa 701, 78 N.W. 235; Schulte v. M. & St. P. R. Co., 124 Iowa 191; Mueller Lbr. Co. v. McCaffrey, 141 Iowa 730, 118 N.W. 903; State v. Walters, 178 Iowa 1108; Vogt v. Chicago, R. I. & P. R. Co., 164 Iowa 158, 145 N.W. 463. It is also the rule that rulings called to the attention of, and passed upon by, the trial court will be reviewed upon appeal, without the incorporation of the same in a motion for new trial. Stewart v. Equitable Mut. Life Ins. Co., 110 Iowa 528, 81 N.W. 782; State v. Kelly, 151 Iowa 264, 130 N.W. 1088; Underwood v. Oskaloosa Traction & Light Co., 157 Iowa 352, 137 N.W. 933; Scott v. Chicago, R. I. & P. R. Co., supra.
This court reviews rulings of the trial court, in ordinary actions upon appeal, when proper objection has been interposed and exception preserved thereto, for the purpose of correcting errors. The requirement that attention of the trial court shall first be called to alleged erroneous rulings is that correction may be made thereby, and the expense and delay of appeal avoided. Section 4105 of the Code provides:
"A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been there made and overruled."
Added significance attaches to this section by the repeal of Code Section 3707, which permitted exceptions to instructions to be noted by the shorthand reporter. Unless the giving of the instructions prepared by the court upon its own motion, in obedience to statutory requirement, is treated as overruling objections subsequently filed thereto, then clearly the errors alleged and relied upon by appellant were never passed upon by the trial court, and no opportunity was given thereto to correct the same. It is true that, in Scott v. Chicago, R. I. & P. R. Co., supra, and other decisions of this court, we held that Section 4105 was designed to cover errors arising after the verdict, such as that it is excessive, or that there was misconduct of the jury. None of these decisions was rendered since the repeal of Sections 3707 of the Code and 3705-a of the 1913 Supplement thereto, and therefore they are not in conflict with the view herein expressed. It will be observed that all objections and exceptions interposed or preserved to instructions under Chapter 24, Acts of the Thirty-seventh General Assembly, must be filed within five days after the filing of the verdict, and must point out specifically the part of the instruction or instructions complained of, and the ground of the objection must be stated. The legislature surely had some purpose in the enactment of these provisions, which are, in substance, identical with Section 3709, known in the Code of 1873 as Section 2789.
The thirty-eighth general assembly (Chapter 11) amended Code Section 3756, fixing the time for filing a motion for new trial, by striking out the word "three" and substituting the word "five" therefor. The importance and significance of this change in the statute is apparent, when considered in connection with the provisions of Chapter 24, Acts of the Thirty-seventh General Assembly permitting objections and exceptions to instructions to be included in the motion for new trial. The legislature must have understood that some relation existed between objections and exceptions to instructions and a motion for new trial. The sole purpose of the defeated party in filing objections and exceptions to instructions, or...
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