Pa. Co. v. Kennard Glass & Paint Co.

• Decision Date: 19 December 1899
• Citation: 59 Neb. 435,81 N.W. 372
• Parties: PENNSYLVANIA CO. v. KENNARD GLASS & PAINT CO. ET AL.
• Court: Nebraska Supreme Court

59 Neb. 435

81 N.W. 372

PENNSYLVANIA CO.

v.KENNARD GLASS & PAINT CO. ET AL.

Supreme Court of Nebraska.

Dec. 19, 1899.

Syllabus by the Court.

1. A judgment cannot be reviewed by one not a party thereto, or who is not affected thereby.

2. Under the constitution of this state, a common carrier of freight cannot lawfully stipulate for the release from liability for loss or damage occasioned by its own negligence, and such a stipulation in a contract of affreightment is illegal and void.

3. Neither the giving of an instruction technically erroneous, nor the refusal of the one stating the law correctly, will work the reversal of a judgment, where it is obvious that the complaining party was not prejudiced thereby.

4. Material averments in an answer, which are controverted by the reply, rest upon the defendant to establish by evidence upon the trial.

5. The laws of a sister state will be presumed to be the same as our own, when the contrary is not shown.

6. The cross-examination of a witness should be confined to the matter covered by his examination in chief.

7. The order in which testimony shall be introduced is discretionary with the trial court, and its ruling in that regard is no cause for reversal, where no abuse of discretion is shown.

Error to district court, Douglas county; Slabaugh, Judge.

Action by the Kennard Glass & Paint Company against the Pennsylvania Company and the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff against the Pennsylvania Company, and it brings error. Affirmed.Will A. Corson and Winfield S. Strawn, for plaintiff in error.

Kennedy & Learned and Montgomery & Hall, for defendants in error.

NORVAL, J.

In 1893 the Kennard Glass & Paint Company, of the city of Omaha, purchased of the Pittsburg Plate-Glass Company a quantity of plate glass, of the value of about $3,000. The glass was properly packed in boxes by the vendor, and loaded upon a car at Ford City, Pa., and delivered to the Allegheny Valley Railway Company at said point for transportation to the vendee, in the city of Omaha. The glass was carried by said railroad company to Pittsburg, where the same was delivered to the Pennsylvania Company; and it delivered the freight, in the city of Chicago, to the Chicago, Milwaukee & St. Paul Railway Company; and the latter corporation transported the freight to the city of Omaha, where the glass was delivered to the consignee in a badly broken and damaged condition. This action was instituted by the Kennard Glass & Paint Company against the Pennsylvania Company and the Chicago, Milwaukee & St. Paul Railway Company to recover damages sustained by reason of the alleged negligence of the defendants in the transportation of said glass, and their failure to safely carry said freight to its place of destination. In the amended petition it was alleged, in substance and effect, that the defendants were common carriers, and, for a certain reward, received the glass in question at Ford City, to be safely carried to Omaha; that the glass was not safely transported to the place of destination, but was broken and damaged in transit to the amount of $433.12. It was also averred that the damage was occasioned by reason of a collision between the car on which the glass was being transported and a car loaded with telegraph poles or timbers. Separate answers were filed by the defendants. That of the Pennsylvania Company admitted only the associate capacity of plaintiff, and the incorporation of the defendant, all other averments of the petition being denied. The Pennsylvania Company, for further answer, alleged that on January 3, 1893, the Pittsburg Plate-Glass Company entered into a written agreement with the Allegheny Valley Railway Company, the initial carrier, of which the following is a copy: “Allegheny Valley Railway Company. Uniform Annual Release. Ford City Station, January, 1893. Whereas, the Allegheny Valley Railway Company has two different rates of charges for tolls and transportation upon certain articles, viz.: The higher rate, upon the payment of which it assumes the ordinary liability of a common carrier upon its railway for property transported by it; and another, lower rate, at which it transports for all those who release it from all liability, so far as may lawfully be done, for any loss or damage to property intrusted to it for transportation; and whereas, the Pittsburg Plate-Glass Co., the undersigned, has determined to ship all property which they furnish for transportation during the year ending upon the thirty-first day of December, 1893, at the reduced rates above referred to, and in consideration thereof to release, so far as it lawfully may, the said company, and any and every other railway or transportation company to which the said property may be delivered for transportation to or towards its place of destination, from all liability for any loss thereof or damage thereto, considering that the difference in their favor in the cost is equivalent to the risk of transportation: Therefore, in consideration of the premises, the said Pgh. Plate-Glass Co. does hereby release and discharge, so far as they lawfully may, the said railway company, and all other railway transportation to or towards its place of destination, from all claims, demands, or liabilities for any loss thereof or damages thereto, howsoever occurring,--by fire or otherwise, or whether by negligence of said railway or transportation companies, or of their, or either of their, officers, agents, or employés, or otherwise,--while the same is in their care, custody, or possession. And the said Pgh. P. G. Co. hereby authorize the said railway or transportation company, and any such other railway or transportation company, as their agent, to deliver the said property to any other railway or transportation company over whose route it may be carried to or towards its place of destination, and they agree that no such railway or transportation company shall be considered as carrier of said property beyond its own road or line, or in any event to be held liable for loss of or damage to said property while in the possession of any other railway or transportation company to which the said property may be delivered as aforesaid. This contract is supplemental to the contract contained in any bill of lading issued in respect to any shipment made by the above-named shipper. In witness whereof, the said Pgh. P. G. Co. has executed this release in Ford City, Pa., this third day of January, A. D. 1893. Pittsburg Plate Glass Company, Shipper. R. W. McCutcheson, Railway Agent. D. S. Robinson, General Manager Ford City Works.” In the answer it was also pleaded that in pursuance of said contract, and in consideration of a lower rate of freight, the Allegheny Valley Railway Company was released by the consignor from all loss or damage to freight shipped during the year 1893, not arising from negligence of said Allegheny Valley Railway Company, its servants and employés, and that the glass in question was carried under said contract, which was valid under the laws of the state of Pennsylvania. The answer of the Chicago, Milwaukee & St. Paul Railway Company admitted its own incorporation, and the associate character of the plaintiff; that the glass was delivered to the Pennsylvania Company for safe conveyance from Ford City to Omaha; admitted that the answering defendant received the glass at Chicago from its co-defendant, and that it carried the same to Omaha. Every other allegation of the petition was denied by the answer, and it was specifically averred therein that the defendant handled and transported the glass in a careful and prudent manner, and that it was not damaged or injured while in its possession. Said defendant in its answer also pleaded the “Uniform Annual Release” copied above, and alleged that the glass was received and transported under and in pursuance of the terms thereof. Plaintiff replied to these answers by a general denial. A verdict was returned in favor of the plaintiff and against the Pennsylvania Company for the sum of $433.12 and interest. Judgment was rendered thereon, and the court dismissed the action as to the Chicago, Milwaukee & St. Paul Railway Company. The Pennsylvania Company alone has prosecuted a petition in error, making the other parties to the cause defendants in error.

The judgment rendered in favor of the Chicago, Milwaukee & St. Paul Railway Company, it is obvious, cannot be disturbed. The plaintiff below, the Kennard Paint & Glass Company, filed no motion for a new trial, nor has it prosecuted a petition in error. Therefore the judgment of the district court is conclusiveagainst the plaintiff below. The Chicago, Milwaukee & St. Paul Railway Company recovered no judgment against the Pennsylvania Company, for its recovery was against the plaintiff below only. The defendants were not jointly liable for the damages sustained by the plaintiff; and the Chicago, Milwaukee & St. Paul Railway Company, it is plain, is not answerable for any injury to the glass while the same was in the possession of the Pennsylvania Company. Consequently the latter was in no wise prejudiced by the dismissal of the action as to its co-defendant. Railroad Co. v. Martin, 47 Neb. 56, 66 N. W. 15. It is but just to counsel for plaintiff in error that we should state that they are not seeking to have reviewed the judgment recovered against the plaintiff below by the Chicago, Milwaukee & St. Paul Railway Company.

The court instructed the jury that the defendants were common carriers, and, as such, each was an insurer of the safe delivery of goods intrusted to it for transportation, and liable for all loss or damages to such goods not arising from the act of God or the public enemy. The seventh, ninth, tenth, and eleventh paragraphs of the court's charge are as follows: “(7) You are instructed that under the laws of the state a contract between a shipper and a common carrier, which by its...