Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Ins. Co.
| Decision Date | 06 February 1896 |
| Docket Number | Nos. 9482 - (78).,s. 9482 - (78). |
| Citation | 64 Minn. 61 |
| Parties | MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY v. HOME INSURANCE COMPANY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
S. E. Hall and McVey & Cheshire, for appellant.
Alfred H. Bright and Kitchel, Cohen & Shaw, for respondent.
This is an action upon the insurance policy construed by this court in its decision, on a former appeal in this case, reported in 55 Minn. 236, 56 N. W. 815. After the cause was remitted to the district court, and before a new trial was had, the plaintiff, by order of the court, was permitted to amend its complaint. The cause was tried by the court without a jury, resulting in findings of fact and conclusions of law, in favor of the plaintiff, to the effect that it was entitled to recover of the defendant the sum of $28,607.28. From an order denying its motion for a new trial the defendant appealed.
1. The 50 proposed additional assignments of error, presented by the appellant on the hearing of the case, and objected to by the respondent, must be disregarded; for the appellant cannot, without leave of the court, or consent of respondent, amend his assignments of error after his time for serving them has passed. The case must be disposed of upon the original assignments. Greene v. Dwyer, 33 Minn. 403, 23 N. W. 546.
The defendant's first alleged error is that the court erred in permitting the plaintiff to amend its complaint. The order allowing the amendment was made previous to the trial, and not as a part of it, and it cannot be reviewed on this appeal, which is from an order refusing a new trial. City of Winona v. Minnesota Ry. Const. Co., 27 Minn. 415, 6 N. W. 795, and 8 N. W. 148. The remedy is an appeal from the judgment. City of Winona v. Minnesota R. Const. Co., 29 Minn. 68, 11 N. W. 228.
2. The next error claimed is that the court erred in holding that the amended complaint stated a cause of action, for the reason that the only ground of recovery by the plaintiff, if any there be, is omitted from the complaint, and stated for the first time in the reply, which is a departure.
We are unable to discover, from an examination of the record, that the trial court was ever requested to, or did, pass upon the proposition that the complaint did not state a cause of action. Where the objection that the complaint does not state a cause of action is raised in this court for the first time, it should not be allowed to prevail, if the complaint can be sustained by any reasonable intendment. We are of the opinion that the complaint does state facts constituting a cause of action, and that the claim that the reply is a departure is equally untenable.
It is claimed, however, by defendant, that the decision of the court on the former appeal is not only conclusive in its favor upon this question of pleading, but also upon its claim, hereinafter to be considered, that the bills of lading, made a part of its answer, with all their provisions, conditions, and exemptions, are valid and binding upon the parties, and that in no view of the case can the plaintiff maintain this action. It will simplify a decision of this appeal if, at the outset, we settle just what was decided by the court on the former appeal.
The cause of action attempted to be alleged in the original complaint was based upon the same insurance policy as the one upon which the cause of action alleged in the amended complaint rests. But the original complaint was framed upon the theory that the plaintiff's liability to shippers for the grain destroyed by fire while in its elevator at Gladstone, Michigan, depended upon a collateral agreement with the shippers to insure the grain, and that such liability to them was covered by the policy. On the first trial of the case the plaintiff was permitted to prove such contract by parol evidence. The first question for the consideration of the court on the former appeal was a construction of the terms of the policy, and it was decided that the policy only insured the plaintiff to the extent of its liability as a carrier and warehouseman to the owners of the grain in its elevator lost by fire. The only other question was whether such liability included the liability of the plaintiff to its shippers, by virtue of its contract with them to insure the grain for their benefit, and it was held that it did not. Hence, the collateral contract so to insure was wholly immaterial, even if it was competent to prove it by parol.
These were the only questions involved, and what is said in the opinion as to the admissibility of parol evidence to prove the collateral contract, though abstractly correct, was unnecessary to a decision of the case. The question of the validity of the conditions and exemptions in the bills of lading was neither involved in the case, as it then stood, nor decided. The statement of the court, at the conclusion of the opinion, that "under no view of the case can the plaintiff recover," had reference only to the record of the case then before the court, and to the claim of the plaintiff, made in its complaint as it then stood, that its liability to its shippers, by virtue of its contract with them, was covered by the policy, and constituted its cause of action. The decision of the former appeal, to the effect that the policy covered only the liability of the plaintiff as a carrier and warehouseman for the grain of its shippers destroyed by fire while it was in the elevator, and that such liability did not include plaintiff's liability to shippers under its contract to insure, is the law of this case, and concludes the parties as to the liability covered by the policy; but, other than this it has absolutely nothing to do with the questions involved in the present appeal.
All that is necessary, in connection with this statement as to the scope of the former decision, to support our conclusion that the amended complaint states a cause of action, and that the reply is not a departure, is a brief analysis of the pleadings.
The amended complaint alleges that the plaintiff is a common carrier operating a line of railway from the city of Minneapolis, this state, through the state of Wisconsin to the port of Gladstone, in the state of Michigan, where it owned and used a grain elevator for transferring wheat and other grain from its railway to vessels, and for storing the same while waiting to be delivered to such vessels in the usual course of carriage from the port of Gladstone to other lake ports; that the defendant duly executed to it the insurance policy in question, a copy of which is made a part of the complaint; that the plaintiff received, at Minneapolis, from certain owners and shippers a given number of bushels of wheat for carriage over its railway to Gladstone, and thence by water to Buffalo, by any lake carrier whose vessels should first call for it at Gladstone, and agreed with each of such owners to carry his wheat by its railway from Minneapolis to Gladstone, and there safely deliver it, for carriage, to the lake carrier whose vessels should first call for it; that on November 29, 1891, and during the life of the policy, the wheat was in the elevator, waiting, in the usual course of carriage, for delivery by plaintiff, in accordance with its agreement, to the lake carrier, and was on that day destroyed or damaged by fire to the extent of $57,214.57; and that the plaintiff has paid the owners of the wheat the damages sustained by them by the loss of the wheat by fire. The complaint also alleges that the plaintiff made and served due proofs of its loss under the policy, and complied with its conditions in this respect. There are other allegations showing that the contract of carriage was one of interstate commerce, and that the provisions of the law relating thereto had been complied with; but, in the view which we take of this case, these last allegations are not material.
The reason assigned by the defendant why the complaint does not state a cause of action is that it contains no allegation that the plaintiff was guilty of any negligence in reference to the fire which caused the loss. But the complaint sets out a common-law contract of carriage, with an obligation to safely deliver the wheat to a connecting carrier, and a...
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