Indianapolis v. Forsythe

• Decision Date: 02 February 1892
• Citation: 4 Ind.App. 326,29 N.E. 1138
• Parties: INDIANAPOLIS, D. & W. RY. Co. v. FORSYTHE.
• Court: Indiana Appellate Court

4 Ind.App. 326

29 N.E. 1138

INDIANAPOLIS, D. & W. RY. Co.

v.FORSYTHE.¹

Appellate Court of Indiana.

Feb. 2, 1892.

Appeal from circuit court, Marion county; L. HOWLAND, Judge.

Action by Asa Forsythe against the Indianapolis, Decatur & Western Railway Company for destruction of goods. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

R. B. F. Pierce, for appellant. L. H. Reynolds and W. A. Van Buren, for appellee.

REINHARD, J.

The appellee brought this action in the court below against the appellant for damages, charging said appellant with liability for goods destroyed by fire while in transit from Guion, Ind., on the line of its road, to Greenfield, in the same state. The complaint declares upon a parol or implied agreement for the transportation of certain household goods, for a valuable consideration, and charges that while said goods were stored in the company's freight depot at Indianapolis, through the negligence and carelessness of the appellant and its servants, the building took fire and burned, and with it all of said goods. There was an answer of general denial by the appellant. The cause was submitted for trial to a jury, resulting in a verdict and judgment in favor of the appellee for the value of the property.

The appellant has assigned but one error, viz., the overruling of the motion for a new trial. One of the causes contained in the motion, and which is urged upon us as a sufficient reason for the reversal of the judgment, is the insufficiency of the evidence to sustain the verdict. The evidence shows, without contradiction, that the appellee, when he delivered the goods to the appellant for shipment, received and accepted a bill of lading for the same, which he identified while upon the witness stand, and which is set out in the record as a part of his testimony. This bill of lading contains a stipulation against the appellant's liability for loss by fire. It is insisted by the appellant's counsel that the action should have been upon the bill of lading, and that there is consequently a fatal variance between the complaint and the proof. We are of the opinion that in this claim the appellant is sustained by the authorities. Railway Co. v. Bennett, 89 Ind. 457;Hall v. Pennsylvania Co., 90 Ind. 459;Bartlett v. Railway Co., 94 Ind. 281;Snow v. Railway Co., 109 Ind. 422, 9 N. E. Rep. 702; Railroad Co. v. Wilson, 119 Ind. 352, 21 N. E. Rep. 341.

It is argued, however, that the right of action set up in the complaint is not upon contract, but for a breach of the carrier's common-law duty, which is in reality a tort, and that a declaration upon the bill of lading in this cause would have been of no avail to the appellant, in any event, for the manifest reason that the destruction of the goods is averred to be the result of negligence, and that against this the law does not permit the carrier to contract. The further argument of the appellee is that, if the carrier has a contract which exempts it from liability, it devolves upon such carrier to set up the contract, and prove it, in defense of the action. There is some force in this contention of the appellee's counsel, and it might present a question of some difficulty, if the cases cited had not established a different rule. It is doubtless true that the carrier cannot limit his common-law liability for negligence by contract, and, if the evidence showed a case of negligence, the bill of lading would be no defense; nor do we think, in such a case, it would necessarily constitute the foundation of the action. But we cannot agree with counsel that the mere fact that the goods were destroyed by fire while in the appellant's possession was conclusive or even presumptive proof of negligence. That it would have furnished a presumption of liability, in view of the carrier's common-law duties as an insurer of goods, is doubtless true, in the absence of any contract. But the common-law liability of the carrier as an insurer may be limited by special agreement, and fire which does not occur through the carrier's fault is a casualty against which he may exonerate himself from responsibility by contract with the shipper. Hutch. Carr. § 248 b; Schouler, Bailm. § 456; Rosenfeld v. Railway Co., 103 Ind. 121, 2 N. E. Rep. 344. If, then, the...