Metropolitan Trust Co. of New York v. Toledo, St. L. & K. C. R. Co.

• Decision Date: 23 March 1901
• Docket Number: 8,970.
• Parties: METROPOLITAN TRUST CO. OF NEW YORK et al. v. TOLEDO, ST. L. & K.C.R. CO. et al. HARMS v. HUNT.
• Court: United States Circuit Court, District of Indiana

107 F. 628

METROPOLITAN TRUST CO. OF NEW YORK et al. v. TOLEDO, ST. L. & K.C.R. CO. et al.

HARMS v. HUNT.

No. 8,970.

United States Circuit Court, D. Indiana.

March 23, 1901

Blackledge Shirley & Wolf and Rooker, Hanna & Daily, for petitioner.

Clarence Brown and Chas. A. Schmettau, for defendants.

BAKER District Judge.

The petitioner alleges that Samuel Hunt, by appointment of this court, was receiver operating the Toledo, St. Louis & Kansas City Railroad across the entire state of Indiana, and into the county of Howard, in said state; that he was a common carrier, over said railroad, of passengers and freight; that on July 21, 1900, the petitioner delivered a certain stallion race horse and a certain gelding race horse to E. O. Hopkins as receiver of the Peoria, Decatur & Evansville Railroad, for shipment from Grayville, Ill., to Kokomo, Ind., which last-named station is in the county of Howard, and on the line of railroad operated by Samuel Hunt, as receiver; that the line of railroad operated by Hopkins, as receiver, was and is a connecting line with the railroad operated by said Hunt, as receiver; that said horses so delivered to Hopkins as receiver, were consigned to George Schover, at Kokomo that a certain contract and bill of lading was entered into between said Hopkins, as receiver, and the said petitioner by the terms of which said Hopkins, receiver, for the sum of $32, agreed to carry said horses, together with other freight, to Kokomo, Ind., by way of the aforesaid railroad and the Toledo, St. Louis & Kansas City Line, operated by Hunt, as receiver; that the freight charged for said shipment was prepaid (a copy of the bill of lading or contract is filed with the petition, and is made a part thereof, and marked 'Exhibit A '); that by the terms of the contract Hopkins, as receiver, agreed to safely deliver the horses at the point of destination; that the freight car containing said horses arrived at Kokomo on the night of July 22, 1900; that Hunt, as receiver, did not safely carry and deliver said race horses to the consignee at Kokomo, as agreed in said contract, but through the negligence and carelessness of said Hunt, as receiver, and his employes and agents, both of said horses were injured and rendered valueless; that upon their arrival at Kokomo the employes of Hunt, as receiver, in order to side-track the car containing the horses, made what is known as a 'flying switch,' and in so doing the car containing the horses was thrown violently against another car standing on the track upon which the said car containing the horses was run; that the car containing the horses was crushed in, and the horses were thrown down, torn loose from their fastenings, and were permanently injured; that the horses were of great value as race horses, and by reason of said injury they are valueless as race horses or for any other purpose; that the two horses were reasonably worth the sum of $7,000; and that by the negligence and carelessness of Hunt, as receiver, and of his agents and servants, the petitioner has been damaged in the sum of $7,000, for which he prays judgment. The defendant answers in two paragraphs, and, as no question is made upon the first paragraph, it is not further noticed. The second paragraph of answer alleges that by the contract and bill of lading entered into between the intervener and Receiver Hopkins, and under and in accordance with the terms on which the horses were shipped, it was agreed between the parties that the said horses were received by Hopkins, as receiver, for transportation as therein provided, upon the terms and conditions in said contract and bill of lading specified, which were admitted and accepted by the said intervener; that in consideration of the limitation, terms, and conditions in said contract and bill of lading contained, and assented to and accepted by the intervener, the freight charge on said shipment to destination should be at the special rate of 32 cents per hundredweight; that it was further stipulated in said contract and bill of lading that in consideration of the guaranty of the aforesaid special rate, and in further consideration of the granting by Hopkins, receiver, of free transportation to one person to accompany said horses, Hopkins, as receiver, and this defendant, as operating a connecting line of railroad, should in no event be liable for injury to said horses in excess of the agreed valuation, upon which valuation the special rate for the transportation of said horses was based, viz. if stallions, not exceeding $200 each, and if horses, not exceeding $50 each, and, further, that if the final destination should be beyond the line of railroad of Hopkins, receiver, then all the terms, provisions, and conditions of said contract and bill of lading should extend to, and be for the benefit of, any connecting carrier receiving said shipment; that the intervener signed said contract and bill of lading, and assented to the terms and conditions thereof; and that even if said horses were injured as in said intervening petition set forth, which the receiver denies, he would be liable for the same only in the sum of $200 for the stallion and $50 for the gelding. To this paragraph of answer the plaintiff has demurred on the ground that the same does not state facts sufficient to constitute a ground of defense. In argument, counsel for the plaintiff insist that this paragraph of answer is bad because it professes to answer the whole complaint and to deny all liability, whereas it ought...