Lake Erie & W.R. Co. v. Holland

• Decision Date: 24 November 1903
• Citation: 162 Ind. 406,69 N.E. 138
• Parties: LAKE ERIE & W. R. CO. et al. v. HOLLAND.
• Court: Indiana Supreme Court

162 Ind. 406

69 N.E. 138

LAKE ERIE & W. R. CO. et al.

v.HOLLAND.

Supreme Court of Indiana.

Nov. 24, 1903.

Appeal from Superior Court, Marion County; J. H. Leathers, Judge.

Action by Frank H. Holland against the Lake Erie & Western Railroad Company and others. Judgment for plaintiff, and defendants appeal. Transferred from the Appellate Court under section 1337o, Burns' Rev. St. 1901. Affirmed.John B. Cockrum and Miller, Elam & Fesler, for appellants. Barrett, Brown, Bamberger & Feibleman, for appellee.

HADLEY, J.

Appellee, at Kokomo, Ind., delivered to the Lake Erie & Western Railroad Company, and associate public carriers, 20 horses, to be transported to the Union Stock Yards, in the city of Indianapolis. A written and printed bill of lading was executed by the parties, and the stipulated freight paid by appellee. The animals were unaccompanied by an attendant, and on the journey a hole 8 by 14 inches was broken in the bottom of the car, through which 10 of the horses dropped some of their feet, and were injured, for which damage is claimed by appellee. The complaint is in three paragraphs. The first counts upon the common-law liability of appellant as an insurer of the safe delivery of the property at the point of destination. To the first paragraph of the complaint, appellants filed a general denial. The second, in substance, charges the public character of appellants, and that at the time of the shipment, and for a long time theretofore, the appellants had one, and only one, rate of freight for the transportation of horses in car-loads lots from Kokomo to Indianapolis, to wit, 11 cents per 100 pounds, and had only one form of contract for the transportation of such animals; that appellee applied to appellants' agent at Kokomo to ship a car load of horses from that place to Indianapolis, and, before appellants would undertake to carry them, they required appellee, as a condition precedent thereto, to enter with them into a contract on their printed form, a copy of which is made a part of the complaint; and so much thereof as is important in this inquiry follows: “Limited Liability Live Stock Contract. *** This agreement made this 25th day of March, 1899, by and between [appellants and appellee] Witnesseth: That the said shipper has delivered to said carrier live stock of the kind and number, and consigned, and destined by said shipper as follows: *** for transportation from Kokomo to Indianapolis *** subject to the official tariffs *** and upon the following terms and conditions which are admitted, and accepted, by said shipper as just and reasonable, viz.: that said shipper is to pay freight thereon to said carrier at the rate of 11 cents per 100 pounds from Kokomo to Indianapolis which is the lower published tariff rate based upon the express condition that *** said shipper is, at his own sole risk and expense, to load and take care of, and to feed and water said stock while being transported *** and to unload the same, and neither said carrier, nor any connecting carrier, is to be under any liability, or duty with reference thereto, except in the actual transportation of the same; that said shipper is to inspect the body of the car in which said stock is to be transported, and satisfy himself that it is sufficient and safe, and in proper order and condition, and said carrier shall not be liable on account of any loss of, or injury to, said stock, happening by reason of any alleged insufficiency in, or defective condition of the body of said car, *** and F. H. Holland [appellee] hereby acknowledges that he had the option of shipping the above described live stock at a higher rate of freight according to the official tariff, classifications, and rules of said carrier, and thereby receiving the security of the liability of said carrier, but has voluntarily decided to ship the same under this contract at the reduced rate of freight above mentioned.” Appellee was to send an attendant with the horses, to feed, water, and care for them while in transit. The complaint avers that appellee, being thus obliged to execute said contract to secure the transportation of his horses, signed it, and paid the stipulated freight, and appellants thereupon took sole possession of the animals, and undertook to transport them to Indianapolis; that although it was stated in said contract that the plaintiff had the option of choosing between two rates of freight-the higher furnishing a higher degree of security, and the lower a less degree-and that he voluntarily elected the lower rate, the fact is that no such option was offered him, nor did he have any knowledge that he could exercise such option, nor did appellants have a schedule rate of freight for such purposes, and each and every one of the exemptions from liability of appellants were exacted by them as a condition to said shipment, and inserted in said contract without any consideration; that, in pursuance of the contract, appellee loaded his horses into a car designated by appellants; that, because of the short distance, and the time necessary, to wit, 3 hours, to transport the said horses to their destination, they needed no food, water, or care en route; that while in transit a part of the floor of the car, by reason of latent defects in its construction, and by reason of being decayed and unsound, which defective and unsound condition was at the time of the shipment known to appellants, broke through, producing a hole 8 by 14 inches in size, by reason of which breaking of the floor 10 of appellee's horses fell with their feet and legs through said hole, and were thereby injured. The third paragraph is like the second, with the additional averments that, when the appellee applied to appellants' agent for a car, he was shown and required to choose between two cars; that one of these was wholly unfit, on account of ice frozen over the floor; that appellee inspected the other, and it appeared to be sound and safe, and he believed it to be sound and fit for the carriage of his horses. It is further charged that appellants knew that the car floor was decayed, weak, and unsound, and on account of which unsoundness the horses were injured. A demurrer to each of the second and third paragraphs was overruled, and the defendants answered by general denial. Trial; verdict and judgment for appellee. The rulings of the court upon the demurrers and in overruling appellants' motion for a new trial are properly questioned.

1. The general assault upon these paragraphs is that, being suits upon a special contract, they each fail to disclose an actionable breach of the contract sued on; the argument being that, as the paragraphs imperfectly count upon the violation of an express contract, there can be no recovery upon a contract implied. We readily acknowledge the rule to be that, if a plaintiff recover, he must do so upon and in accordance with the allegations of his complaint; and, in the application of this rule, a suit against a common carrier for a breach of its common-law duty in the transportation of live stock must fail upon proof that the shipment was made under a special contract. Railway Company v. Bennett, 89 Ind. 457;Hall v. Pennsylvania Co., 90 Ind. 459. And vice versa, Fry v. Railway Company, 103 Ind. 265, 2 N. E. 744. But are these actions upon a special agreement, within the purview of the rule? As we understand the paragraphs-and there is really no difference between them in respect to the general questions-they proceed upon the theory that the plaintiff was compelled by his situation to assent to what purports to be a special contract of carriage under such circumstances and conditions as render the special stipulations void. He alleges that he did not choose between two rates of freight that he did not know he had a right to so choose; that appellants had no such thing as two rates of freight for the transportation of car loads of horses from Kokomo to Indianapolis, and that he was required by appellants to sign the bill of lading exhibited, exempting them from liability, as a condition precedent to the shipment of the horses; and that he received no consideration for relieving appellants of their common-law duty. It is well settled that a public carrier may, to some extent, limit by stipulation in the bill of lading his strict common-law liability. Insurance Company v. Lake Erie, etc., Co., 152 Ind. 333, 53 N. E. 382. But it is equally well settled that a contract qualifying the responsibility imposed upon the carrier by the common law must be supported by a valuable consideration, apart from the mere acceptance of the property for carriage. Rosenfeld v. Railway Co., 103 Ind. 121, 2 N. E. 344, 53 Am. Rep. 500;German, etc., v. Railway Co., 38 Iowa, 127;Wehmann v. Railway Co., 58 Minn. 22, 59 N. W. 546;Southard v. Railway Co., 60 Minn. 382, 62 N. W. 442, 619;McFadden v. Railway Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Potter v. Sharp, 24 Hun, 179; Gardner v. Railway Co., 127 N. C. 293, 37 S. E. 328;...