Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Ins.

• Decision Date: 06 February 1896
• Citation: Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Ins., 64 Minn. 61, 66 N.W. 132 (Minn. 1896)
• Parties: MINNEAPOLIS, ST. P. & S. S. M. RY. CO. v HOME INS. CO.
• Court: Minnesota Supreme Court

64 Minn. 61

66 N.W. 132

MINNEAPOLIS, ST. P. & S. S. M. RY. CO.vHOME INS. CO.¹

Supreme Court of Minnesota.

Feb. 6, 1896.

(Syllabus by the Court.)

1. The assignment of errors cannot be amended by the appellant, after his time for serving them has passed, without the consent of the respondent or leave of the court.

2. An order allowing an amendment of the complaint, made before the trial, and not as a part of it, cannot be reviewed on appeal from an order denying a motion for a new trial. City of Winona v. Minnesota Ry. Const. Co., 6 N. W. 795,8 N. W. 148, and 27 Minn. 415, followed.

3. This action is upon a contract by defendant to insure the plaintiff, a common carrier, to the extent of its liability as such, for loss by fire on grain in its elevator at its terminal station. The complaint set out the contract; also, a common-law contract of carriage of the grain of certain shippers, with the obligation to safely deliver it, at such station, to the connecting carrier; that while it was awaiting, in such elevator, such delivery, in the usual course of its carriage, the grain was lost by fire; and that the plaintiff had paid the shippers therefor,-but did not in express terms allege that the fire was due to the negligence of the carrier. Held, that the complaint stated a cause of action.

4. The answer alleged that the contract of carriage was evidenced by a bill of lading containing stipulations modifying the plaintiff's common-law liability, and that the fire was not due to its negligence. The reply admitted the bill of lading, and affirmatively alleged that the fire was caused by plaintiff's negligence. Held, that the reply was not a departure in pleading.

5. Held, that the carrier may lawfully insure against liability for loss of goods carried, though occasioned by the negligence of his own servants.

6. Evidence considered, and held to sustain the findings of the court, to the effect that the fire which caused the loss of the grain was due to the negligence of the plaintiff, and that the defendant waived the furnishing of the proofs of loss within the time limited by its policy.

7. The plaintiff had other insurance on the grain, payable to itself, for the benefit of the shippers, in a sum equal to the amount named in the defendant's policy, which provided that the defendant should not be liable for a greater proportion of any loss than the amount insured should bear to the whole insurance. The trial court held the defendant liable for one-half of the loss. Held, that the court committed no error, as against the defendant.

Appeal from district court, Hennepin county; Seagrave Smith, Judge.

Action by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company against the Home Insurance Company. There were findings for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

S. E. Hall and McVey & Cheshire, for appellant.

Kitchel, Cohen & Shaw and A. H. Bright, for respondent.

START, C. J.

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 assignment of errors 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 Ry. 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, Mich., 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 was not. Hence, the collateral contract to so 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 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, thence by water to Buffalo, by any lake...