Michigan Cent. R. Co. v. S.J. Peabody Lumber Co.

Citation76 Ind.App. 222,131 N.E. 841
Decision Date29 June 1921
Docket NumberNo. 10860.,10860.
PartiesMICHIGAN CENT. R. CO. v. S. J. PEABODY LUMBER CO.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Whitley County; B. J. Blaum, Special Judge.

Action by the Michigan Central Railroad Company against the S. J. Peabody Lumber Company. Judgment for defendant, and plaintiff appeals. Judgment reversed, with directions.E. K. Strong, of Columbia City, for appellant.

Wm. F. McNagny, Robt. R. McNagny, and Phil M. McNagny, all of Columbia City, for appellee.

BATMAN, J.

This is an action by appellant to recover certain freight and demurrage charges, arising from a shipment of a carload of wood by appellee from Columbia City, Ind., to the Illinois Fuel & Mining Company at Tolleston, Ind. Appellee filed a cross-complaint against appellant, which might more properly have been designated as a counterclaim, in which it is alleged, in substance, among other things, that on March 31, 1916, it shipped the carload of wood mentioned in the complaint; that it was loaded and delivered to the Vandalia Railroad Company at Columbia City, Ind., and on said date a bill of lading was duly executed by said railroad company therefor, a copy of which is filed with the complaint; that said town of Tolleston is situated on a direct line of the Pittsburg, Ft. Wayne & Chicago Railroad Company, running from Columbia City, Ind., to Chicago, Ill., and that said line was intersected at Columbia City by the tracks of the Vandalia Railroad Company; that said line is the shortest and most direct route for shipment of freight from Columbia City to said town of Tolleston; that it did not give said Vandalia Railroad Company any specific directions for the routing of said carload of wood, but that it had been for many years an extensive shipper of lumber and other materials over said Vandalia Railroad, and that all of its shipments from Columbia City to Chicago and intermediate points had been routed over said Pittsburg, Ft. Wayne & Chicago Railroad; that, notwithstanding such fact, said Vandalia Railroad Company shipped said car of wood from Columbia City to Tolleston by the way of South Bend, Ind., which is a roundabout way for making shipments between said points; that in so doing said Vandalia Railroad Company failed to use a reasonable discretion for the benefit of appellee, as was its duty to do in the absence of specific directions; that its failure in that regard delayed said shipment, and increased the freight charges thereon from 5 cents to 8 1/2 cents per hundredweight; that the weight of said car of wood was 34,000 pounds, as shown by the bill of lading therefor, and that the freight charges thereon, as fixed by the Vandalia Railroad Company, were $28.90; that appellant accepted said shipment from the Vandalia Railroad Company, as a connecting carrier, subject to the schedule of rates then on file with the Railroad Commission of Indiana; that upon the arrival of said car of wood at Tolleston, Ind., appellant notified the consignee thereof that the freight charges thereon were $94.24; that said sum was $65.24 in excess of the amount of freight properly chargeable for the shipment of said car of wood from Columbia City to Tolleston, Ind., by way of South Bend, and was $77.24 in excess of the amount of freight properly chargeable, if shipped by the way of Pittsburg, Ft. Wayne & Chicago Railroad; that the consignee of said car of wood refused to accept the same, on account of said illegal and excessive freight charges; that appellant, without notifying appellee of that fact, removed said wood to Kensington, Ill., and wrongfully converted the same to its own use by making sale thereof, without the consent of the consignee or the consignor and without complying with the provisions of sections 3893 and 3894, Burns' 1914; that the value of said wood at the time of its said conversion was $60.

Appellant filed a demurrer to this cross-complaint for want of facts, which was overruled, and thereupon answered the same by a general denial. Appellee filed an answer to the complaint in three paragraphs. The first was a general denial. The second was substantially the same as its cross-complaint, except that it does not contain any allegations as to the refusal of the consignee to accept the wood, or of appellant's conversion thereof. By this paragraph appellee seeks to answer all of the complaint, except $17, which it alleges was the proper freight charge for the shipment of said carload of wood over the most direct route between Columbia City and the town of Tolleston. The third paragraph contains substantially the same averments as the second, and in addition thereto alleges the refusal of the consignee to accept said wood upon its arrival at Tolleston, because of the illegal and excessive freight charges against the same, the shipment of the same to Kensington, Ill., without notifying appellee of the consignee's refusal to pay the freight charges thereon, and the sale of the same by appellant for $58.50, without having complied with said sections 3893 and 3894, Burns' 1914. By this paragraph appellee seeks to answer so much of the complaint as is based on the demurrage charges, which it is alleged accrued at Tolleston, Ind., and Kensington, Ill., including certain reconsignment and advance charges from Kensington to Chicago, Ill. Appellant filed a demurrer for want of facts to each of said paragraphs of answer, which was overruled, and thereupon filed a reply thereto in general denial. The cause was submitted to a jury for trial, resulting in a verdict in favor of appellee for $58.50, which amount was duly remitted of record with the approval of the court. Appellant filed a motion for a new trial, and also a motion in arrest of judgment, each of which were overruled. Judgment was thereupon rendered against it for cost, and this appeal followed.

[1] Appellee seeks to have the appeal in this cause dismissed on the ground that the record shows that the issues were settled before the regular judge of the Whitley circuit court, while the cause was tried before a special judge, without disclosing any change of venue, or the appointment of such special judge. These facts afford no ground for dismissal, as it is well settled that where the record is wholly silent as to the appointment of a special judge a presumption will arise that it was duly made, and if his authority is not questioned until after a trial is had and a judgment rendered, all objections, based on the absence of an appointment in conformity with the statute, which might have been properly and possibly successfully made, if timely presented, will be deemed waived. Kennedy v. State (1876) 53 Ind. 542;Zonker v. Cowan (1882) 84 Ind. 395;Kenney v. Phillipy (1883) 91 Ind. 511;Schlungger v. State (1887) 113 Ind. 295, 15 N. E. 269;Bartley v. Phillips (1887) 114 Ind. 189, 16 N. E. 508;Lillie v. Trentman (1891) 130 Ind. 16, 29 N. E. 405;Larrance v. Lewis (1912) 51 Ind. App. 1, 98 N. E. 892;Pottlitzer v. Citizens' Trust Co. (1915) 60 Ind. App. 45, 108 N. E. 36;Folger v. Barnard, 125 N. E. 460.

[2] Appellant contends that the court erred in overruling its demurrer to appellee's second paragraph of answer to the complaint. It is not clear whether this paragraph was intended as an answer to the entire complaint, or only to a part thereof. If it was intended as an answer to the entire complaint it is clearly insufficient, as appellee, in effect, admits therein that it owes appellant the amount of freight properly chargeable, if the carload of wood had been sent over the shortest route. But construing said paragraph as a partial answer only, as we do, still it is insufficient, as its apparent theory is that under the facts alleged it is only liable for the amount of freight properly chargeable if said car had been shipped by the shortest route, to wit, $17. We cannot sustain this theory. If this were an action by the initial carrier against appellee for the transportation charges on said wood, a different question would be presented. This, however, is an action by the terminal carrier against appellee, as the shipper, to recover transportation and demurrage charges. There are no allegations in said paragraph of answer which show that appellant had any knowledge that the initial carrier was at fault in routing said carload of wood, and hence it had a right, as the terminal carrier, to pay the charges of the initial carrier for making the shipment as it did, and collect the same of appellee. Northern, etc., R. Co. v. Pleasant River, etc., Co., 116 Me. 496, 102 Atl. 298;Central, etc., R. R. Co. v. Berry, 99 Misc. Rep. 560, 165 N. Y. Supp. 1041;Central, etc., R. Co. v. Lovell, 111 Misc. Rep. 735, 180 N. Y. Supp. 922;Wabash R. Co. v. Pearce, 192 U. S. 179, 24 Sup. Ct. 231, 48 L. Ed. 397;Berry, etc., Co. v. Chicago, etc., R. Co., 116 Mo. App. 214, 92 S. W. 714.

[3] It appears from the averments of said paragraph of answer that the proper freight charges on said wood from Columbia City to the town of Tolleston were $28.90, and since it purports to answer all of the complaint, except...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT