Keeney v. Chi., B. & Q. R. Co.

• Decision Date: 07 May 1918
• Docket Number: No. 32014.,32014.
• Citation: 167 N.W. 475,183 Iowa 522
• Court: Iowa Supreme Court
• Parties: KEENEY v. CHICAGO, B. & Q. R. CO.

183 Iowa 522

167 N.W. 475

KEENEY

v.CHICAGO, B. & Q. R. CO.

No. 32014.

Supreme Court of Iowa.

May 7, 1918.

Appeal from District Court, Page County; E. B. Woodruff, Judge.

Action for damages against a carrier for negligent delay in the shipment of poultry. There was a verdict for plaintiff, and the defendant appeals. Reversed and remanded.W. D. Eaton and E. C. Eicher, both of Burlington, and Scott & Peters, of Clarinda, for appellant.

Earl R. Ferguson and C. R. Barnes, both of Shenandoah, and Harry W. Shackelford, of Omaha, Neb., for appellee.

EVANS, J.

In January, 1912, the plaintiff shipped to his commission merchants at New York City four carloads of live poultry. These shipments were made on different nearby dates, and originated at different towns in Iowa and Missouri. It is alleged that there was unreasonable delay in transporting such shipments so that they were belated in their arrival at New York City; that the plaintiff suffered loss by reason of a drop in the market pending such delay and by reason of increased expenses in caring for the poultry and increased shrinkage resulting from the delay. The shipments were all made under a uniform bill of lading approved by and on file with the Interstate Commerce Commission as a part of Western Classification No. 50 and Official Classification No. 37. Under this bill of lading a slightly reduced rate was allowed, and certain stipulations provided for limited liability. These included the following:

“No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch unless by specific agreement endorsed hereon. Every carrier shall have the right in case of physical necessity to forward said property by any railroad or route between the point of shipment and the point of destination; but if such diversion shall be from a rail to a water route the liability of the carrier shall be the same as though the entire carriage were by rail. The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computations, whether or not such loss or damage occurs from negligence. Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.”

In the introduction of evidence and in the submission of the case to the jury the provision of the bill of lading as to measure of damage, requiring that it should be computed on the basis of the value of the property at the time and place of shipment, was ignored, and plaintiff was permitted to recover for damages from a drop in the market resulting after the date upon which the shipment should have arrived, regardless of the question of the reduced value of the freight as compared with the original value thereof at time of shipment plus freight paid, etc. Furthermore, plaintiff did not make claim for loss, damage, or delay within four months after delivery of the property as required by such bill of lading. The controversy on this appeal revolves about these two provisions. The plaintiff as appellee has also filed a motion to affirm which has been submitted with the case.

[1][2][3] I. The motion to affirm is predicated upon the fact that the appeal was from an order overruling the motion for a new trial, and not from the judgment. It is contended that the motion for a new trial was not sufficiently specific in its grounds to permit a review of alleged errors committed at the trial. The jury rendered a verdict on December 11, 1915. On the same day the following record was made:

“Comes now the jury and return a verdict which is in words and figures following, to wit: ‘We, the jury, find in favor of the plaintiff and we fix the amount of his recovery at $1,688.98. C. C. Bullock, Foreman.’ The jury are now discharged from further services herein. It is therefore ordered by the court that the defendant pay the cost of this action taxed _____ dollars and that execution issue therefor.”

A motion for a new trial was filed by the defendant within the ten days allowed by the court. This motion being submitted was held under advisement by the court until the 12th day of July, 1916, when it entered an order overruling the motion. At this time the time for appeal from the original judgment had passed. Within six months thereafter the defendant appealed from the order overruling the motion for a new trial. It is now contended for the appellee that the defendant may not be heard on this appeal except upon the grounds stated in the motion for a new trial, and that it may not be heard even upon these because they are too indefinite in their specification of error to comply with the rules of this court regarding the requisites of appellant's brief.

As a general proposition, it may be said that, inasmuch as the appeal is only from the order overruling the motion for a new trial, no ruling on the trial can be reviewed on this appeal unless it was within the scope of the motion for a new trial. On the other hand, all rulings made on the trial are subject to review if they were fairly included within the grounds of motion for a new trial. The motion for new trial conformed to the statute as to grounds stated. These grounds were somewhat formal and not very specific. The first and second grounds were “the verdict is not sustained by sufficient evidence and is contrary to the evidence and is contrary to the law.” This was in compliance with subdivision 6 of section 3755. The sixth ground of the motion charged error in overruling the plaintiff's motion at the close of the evidence for a directed verdict, reference being made to the grounds of such motion as appearing in the record. This was in purported compliance with subdivision 8 of section 3755. Specific objections and exceptions were made during the trial to each of 20 instructions. These were made regularly in advance of their submission to the jury. The seventh ground of motion for a new trial charged error in submitting such instructions to the jury, specifying the same by number, “for the reasons set out in defendant's objections and exceptions now on file herein which are hereby referred to and made a part of this motion.” This was in purported compliance with subdivision 8 of section 3755. Other grounds were alleged, but we need not consider them. As to the grounds here set forth we think the motion for a new trial was sufficient in form as a motion for a new trial. They fairly called in question before the trial court the rulings there complained of. If so, then such rulings are subject to review on this appeal even though the rules of this court require greater specification of error in appellant's brief than appears from the mere statement of the motion for new trial. Inasmuch as the motion for a new trial is adequate to subject such errors to review, the appellant may of course resort to the record of the original proceedings for a more specific statement of the error complained of. This the appellant has done. Mueller Lbr. Co. v. McCaffrey, 141 Iowa, 730, 118 N. W. 903;Williams v. Clark County, 143 Iowa, 328, 120 N. W. 306. It is true that in his original assignment of errors the plaintiff made no reference in terms to the motion for a new trial, but this omission has been corrected by an amended brief. Of course, if the instructions had not been excepted to on the trial and in advance of their submission to the jury, quite a different question would be presented. In such event the appellant would have no exceptions to the instructions, because the motion for a new trial was insufficient for that purpose.

It is urged by the plaintiff that the defendant waived its motion for a directed verdict for failure to renew the same after the evidence was fully closed. It appears from the record that the defendant made its motion for a directed verdict in the first instance after both partie...