McMillan v. American Express Co.

• Decision Date: 23 February 1904
• Citation: 98 N.W. 629,123 Iowa 236
• Parties: H. G. MCMILLAN, Appellees, v. AMERICAN EXPRESS COMPANY, Appellant
• Court: Iowa Supreme Court

98 N.W. 629

123 Iowa 236

H. G. MCMILLAN, Appellees, v. AMERICAN EXPRESS COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 23, 1904

Appeal from Lyon District Court.--HON. J. F. OLIVER, Judge.

ACTION at law to recover the value of a cow injured, as is claimed by the plaintiff, while being transported from Waldron, in the state of Indiana, to Rock Rapids, in this state.The defendant denied all negligence on its part, pleaded a contract of shipment limiting the time for the bringing of action, and fixing the value of the animal at $ 100, and further pleaded that whatever injury the cow received was due to causes arising from the condition of the animal and to her own conduct while being transported.The reply pleads a waiver of the condition in the contract as to the time for bringing suit and some other matters not necessary to be noticed.The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

AFFIRMED.

Lyon & Lyon and E. Y. Greenleaf for appellant.

Parsons & Rinaker for appellee.

OPINION

DEEMER, C. J.

With the exception of the first, the assignments of error are all omnibus in character, and fail to point out the exact error complained of.Section 4136 of the Code provides that "no question shall be considered by the Supreme Court unless pointed out by an assignment of error, which * * * must clearly and specifically indicate the very error complained of, and, among several points made in * * * motion, instructions or rulings, the one, or those relied upon, must be separately stated."We have so many times construed this section that it is useless to cite all the cases where it has been involved.They will be found in the annotations to the Code and in the supplement of 1902.But seeHuss v. R. R.,113 Iowa 343, 85 N.W 627;Fitch v. R. R.,116 Iowa 716, 89 N.W. 33;Faivre v. Manderschied,117 Iowa 724, 90 N.W. 76;Nordine v. Rosengreen,(Iowa), 89 N.W. 103(not officially reported).

The one assignment which is sufficient challenges a ruling made in the introduction of evidence.It seems that plaintiff purchased the cow from one Beraner, who, it appears, was the agent of the defendant company at Waldron, Ind., the place where the animal was delivered for shipment.As agent both for the express company and of the plaintiff, he undertook to enter into a contract between them for the carriage of the animal by the defendant company.Some question was made as to his authority to act for both parties.Defendant to make out one of the issues tendered by it relating to limitation of liability by contract, produced a witness who it appears was an agent of the defendant at the Central Station of the Illinois Central Railway Depot in Chicago, Ill., and asked him this question: "I want to ask you what is the custom of the company in issuing contracts for the transportation of live stock?"This was objected to as immaterial, and the objection was sustained.We do not find that this matter is argued in appellant's brief, but, if it had been, there was no error in the ruling.It is not competent by proof of usage or custom to impose a limitation of liability not provided for in the contract of shipment itself.Nor will...