Pittsburgh, C., C. & St. L. Ry. Co. v. Brown

• Decision Date: 25 January 1912
• Docket Number: No. 21,895.,21,895.
• Citation: 178 Ind. 11,97 N.E. 145
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. BROWN.
• Court: Indiana Supreme Court

178 Ind. 11

97 N.E. 145

PITTSBURGH, C., C. & ST. L. RY. CO.

v.BROWN.

No. 21,895.¹

Supreme Court of Indiana.

Jan. 25, 1912.

Appeal from Circuit Court, Delaware County; Jas. G. Leffler, Judge.

Action by Phœbe Brown, administratrix, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.G. E. Ross, for appellant. Theodore Shockney, for appellee.

MYERS, J.

This cause went to the jury on the first and third paragraphs of the complaint; the second and fourth having been withdrawn on the trial. The complaint was originally filed January 4, 1904, and was later amended, and, with the third, filed as an amended complaint October 6, 1906.

The fact of the death of the appellee's decedent April 22, 1903, and her appointment and qualification as administratrix May 12, 1903, and of appellant being a common carrier with its line of railroad running through the city of Dunkirk, in Jay county, Ind., is alleged in each paragraph.

In the first paragraph it is alleged: That on or about January 10, 1903, appellee's decedent, being the owner of certain household furniture, horses, and cattle of the value of $1,000, entered into a written contract with appellant to ship his property from said city of Dunkirk over its line of railroad to the town of Carlisle, in Sullivan county, Ind., which contract is set out and is in the usual form of bills of lading. That appellant owned, operated, and used a switch and side track in said city of Dunkirk, upon which it placed empty cars for the use of its patrons, and that, pursuant to said contract, the defendant furnished the decedent a car on said side track, and directed him to load his said property therein for shipment, and he loaded the property therein. That the defendant negligently, carelessly, and with great force and violence, and without any notice to the decedent, by means of a locomotive engine and heavily loaded cars, kicked, shunted, shoved, pulled, and dropped said car from said side track onto its main track against defendant's freight cars and heavily loaded freight train then standing on defendant's main track, with such force and violence, as to crush, break, and demolish said car, into which he had loaded his said property, and in which he was at the time ready for transportation, and without notice to him, and without any fault or negligence on his part, forced said car by means aforesaid upon and against defendant's said freight train on its main track, whereby and by reason of said carelessness and force destroyed his property to his damage in the sum of $1,000. That defendant immediately after the demolition of the car unloaded the property from the demolished car, and examined the property, and then and there determined the extent of the injury, and made a list of it, which it retained, and immediately thereafter loaded it into another car, and forwarded it to its destination. Demand for $1,000 damages on this paragraph.

The third paragraph alleges: That appellant's railway line extended from Dunkirk to the town of Carlisle, and that on or about January 5, 1903, the decedent entered into a written contract set forth in the first paragraph, counting upon it as a contract of carriage of himself, and that while the car was loaded, and on the side track, and after the defendant had been notified that the car was loaded and was ready for transportation, and when the defendant knew that the decedent was in said car, and ready to be carried and transported, defendant carelessly, negligently, and unnecessarily caused the injury in the manner alleged in the first paragraph, and, in addition, adds that, by reason of such unskillfulness, carelessness, negligence, and unnecessary force, the decedent while in the car which he had entered for travel was so struck, bruised, crippled, maimed, and permanently injured that he sickened and died April 22, 1903. That by reason of such injury the decedent was made to suffer in body and mind, and was thereafter during his life rendered incapable of performing any labor, and was put to great expense in medical attendance, nursing, and medicine, and his estate put to great expense on account of his death and has been damaged thereby in the sum of $10,000. That he was 53 years old and left surviving him his wife and a son 16 years old and a son - years old, and demand is made for $20,000 damages.

To each of these paragraphs a demurrer was addressed on account of insufficient facts, and that several causes had been improperly joined. The demurrers were overruled and appellant excepted. There was answer in general denial; second an answer to that part of the first paragraph which was to recover for injury to his stock, horses, and cattle, because no claim in writing was filed as required by the contract, setting out its provisions in that particular. The third paragraph, addressed to the third paragraph of the complaint, alleges that the right of action originally declared on was for willful injury, and that the original complaint is set out therein, and that a new and different cause of action is set up in the third paragraph of the complaint, and is barred by the two-year statute of limitations. The fourth paragraph, addressed to the third paragraph of the complaint, sets up the failure within 30 days after the happening of the accident, and the accrual of the alleged damages to file a claim therefor, and relied upon a clause in the contract providing that no claim for damages which might accrue to him under the contract should be allowed or paid, or used in court by the decedent, unless a claim should be filed within five days from the time the damage accrued upon the theory asserted in the answer that, if the decedent had any cause of action, it was under the contract alone. Demurrers were sustained to the third and fourth paragraphs of answer. Upon trial and verdict, and, over motion for a new trial, judgment was rendered for appellant, from which this appeal is prosecuted, based upon alleged errors presented in ruling upon the demurrers to the complaint and answers, and overruling appellant's demurrer to the reply, to the second paragraph of appellant's answer, and overruling appellant's motion for a new trial.

The sufficiency of the first paragraph of the complaint is challenged on the ground (1) that it seeks to recover for breach of a special contract, and that no breach is alleged, nor compliance or offer to comply with the contract on appellee's part; (2) that the paragraph fails to show any duty or breach of duty necessary to charge actionable negligence; (3) that it is not shown that appellant had received the property for transportation; and (4) that, if the paragraph seeks to charge a tort, facts showing actionable negligence are not shown.

[1] Taking the second and fourth points first, we think there can be no doubt that the paragraph does not sound in tort, but is for breach of a contract of carriage. It may be that allegations as to the careless or negligent manner in which the car was taken up and the property injured or destroyed were unnecessary, but the complaint clearly seeks to recover for the failure to transport property under a special contract, and these allegations have no force except as characterizing the manner in which carriage failed, though there may be cases where liability arises from negligence, as for example negligence in forwarding, or in failing to protect or care for property, or negligence contributing to a loss where the primary cause is due to the act of God.

[2] The facts alleged clearly show that the property had been received for transportation. A contract for carriage is shown, also the setting of a car with direction to load, its loading, notice that it was loaded and ready to go forward, and its taking up to be put in the train for transportation. Ohio, etc., Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727;Evansville, etc., Co. v. Keith, 8 Ind. App. 57, 35 N. E. 296; Bennitt v. The Guiding Star (D. C.) 53 Fed. 936;Rogers v. Wheeler, 52 N. Y. 262; Merriam v. Hartford, etc., Co., 20 Conn. 354, 52 Am. Dec. 344; Montgomery, etc., Co. v. Kolb, 73 Ala. 396, 49 Am. Rep. 54; Pittsburgh, etc., Co. v. Barrett, 36 Ohio St. 448;St. Louis, etc., Co. v. Murphy, 60 Ark. 333, 30 S. W. 419, 46 Am. St. Rep. 202; 6 Cyc. pp. 412-415.

As to the first point, it is sufficiently disclosed that there was an undertaking to carry and acceptance for carriage, and a failure to carry and deliver, and a compliance upon the part of the shipper with the things required of him.

[3][4] As to the third paragraph, the challenge is that the facts alleged do not show appellee's decedent to have been a passenger, or actionable negligence in the omission of any duty owing him which caused the injury, or, it actionable negligence is otherwise shown, that it is not shown that the decedent was earning or capable of earning anything, and that a complaint which seeks to recover for damage to and destruction of property as sounding in contract is improperly joined with a cause of action sounding in tort for injury to the decedent from which he died, and there was a demurrer for the latter cause, but under our statute a reversal of a judgment for overruling a demurrer for misjoinder of causes of action is expressly prohibited. Burns' 1908, § 346; Boonville Bank v. Blakey, 166 Ind. 427, 76 N. E. 529;Brown v. Bernhamer, 159 Ind. 538, 65 N. E. 580;Murphy v. Branaman, 156 Ind. 77, 59 N. E. 274;Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540;Thompson v. McCorkle, 136 Ind. 484, 34 N. E. 813, 36 N. E. 211, 43 Am. St. Rep. 334. The remedy is by motion to separate. Cargar v. Fee, 140 Ind. 572, 39 N. E. 93. And this is necessarily true, even though the damages under one paragraph go to the estate, and those under the other paragraph to the next of kin; but that is a matter with which ap...