Ruebel Bros. v. American Express Co.

• Decision Date: 31 December 1920
• Docket Number: 33239
• Parties: RUEBEL BROTHERS, Appellees, v. AMERICAN EXPRESS COMPANY, Appellant
• Court: Iowa Supreme Court

180 N.W. 658

190 Iowa 600

RUEBEL BROTHERS, Appellees, v. AMERICAN EXPRESS COMPANY, Appellant

No. 33239

Supreme Court of Iowa, Des Moines

December 31, 1920

Appeal from Buena Vista District Court.--JAMES DE LAND, Judge.

APPELLEE has verdict on claim that appellant was negligent in handling an interstate shipment of a live animal. Defendant appeals.

Affirmed.

Bailey & Edson and Charles W. Stockton, for appellant.

A. L Whitney, for appellees.

SALINGER J. WEAVER, C. J., EVANS and PRESTON, JJ., concur.

OPINION

SALINGER, J.

I.

On March 2, 1918, plaintiff delivered to defendant for interstate shipment a hog, declared to be worth $ 300. Plaintiff alleges that, at delivery, the hog was healthy, and properly crated. The animal was shipped by various connecting routes, died en route somewhere in Texas, and was never delivered to the consignee. Plaintiff asserts that the death was due to negligence; and that, by writing, on due consideration, defendant insured safe delivery to the consignee; and that plaintiff has been damaged in $ 300. There are denials, and, in addition, there are the following affirmative defenses: (a) Defendant denies that it was in any manner responsible for the death of said hog, and avers that same died from disease, or cause unknown to defendant, and for which it was in no manner responsible; (b) that, by Section 5 of the contract between the parties, it was agreed that defendant should not be liable for the conduct or acts of the animal itself, such as biting, kicking, goring, or smothering, nor be liable for loss or damage arising from the condition of the animal, or resulting from its nature or propensities, and that plaintiff assumed the risks from these; (c) that the shipper released and discharged the defendant from all liability for delivery, injuries to or loss of said animal from any cause whatever, unless such delivery, injury, or loss be caused by the negligence of the defendant, its agents, or employees; and that, though there be such negligence, defendant should be liable only to the extent of the actual damage sustained, and in no event for more than the value of the animal.

II. It is true that, in Richter & Sons v. American Exp. Co., 180 Iowa 1037, 164 N.W. 228, Adams Exp. Co. v. Croninger, 226 U.S. 491 (33 S.Ct. 148, 154, 57 L.Ed. 314), and in numerous other cases, it is settled that a shipper may not undervalue, to obtain a low rate, and, on loss, demand value which, though true value, is greater than the one declared as the basis of the carriage rate obtained. Though this is the law, it is immaterial law. This shipper got his rate on the basis of declaration that the hog is worth $ 300. That is the sum he is seeking to recover, and was awarded; and the verdict finding the value to be $ 300 has sufficient support in the evidence.

What we have said covers the complaint that the court erred in giving Instruction 1 and Instruction 5, because the animal in question was not classed as "ordinary live stock," but was one kept for breeding purposes, and the further complaint that Instruction 6 errs because the law specifically permits the common carrier to limit its liability, in the case of an animal kept for breeding purposes.

As just said, that would be material if the plaintiff had obtained a rate upon one valuation,--say, the rates upon ordinary live stock,--and was now attempting to recover on a basis not covered by rates. But here is no such case.

III. It is assigned the court erred in sustaining objections to the offer of Exhibit No. 2. On that point, the record is this: The witness Herron, called for defendant, testified that he was the messenger who carried the animal, and that "defendant's Exhibit No. 2 is the waybill I had at the time of the shipment. I made the pencil notations on the bill, and turned it over to Mr. Justice, the messenger who took the shipment from there." The offer of this exhibit was objected to as incompetent, irrelevant, and immaterial, "and don't tend to prove any matters in the issue of this case." The ruling was: "Sustained as not having been properly identified."

"Q. Does defendant's Exhibit 2 refer to the shipment of the hog from Marathon to Mt. Calm? (Objected to as not the best evidence. Overruled. Plaintiff excepts.) A. Yes, sir, it is the only waybill I have with reference to that shipment. (Defendant then re-offered Exhibit No. 2, as identified. Same objection as to original offer. Sustained. Defendant excepts.)"

Since the ruling sustained objection made, it must be upheld, even if the objection stated is not good, unless no good reason for rejecting the testimony can be found in the record. One objection made to it was that it was immaterial and irrelevant. Assume the objection that it was incompetent for want of identification is not well made: these other objections remain. No one can tell from this record whether this ruling was right or wrong. Nothing indicates why the waybill in the possession of this messenger should have been received. Nothing indicates that that paper contained anything material or relevant to this inquiry. It was a case where the exclusion can be availed of only upon a profert that brings before the court what it is proposed to accomplish by the introduction of the paper offered.

IV. It is not seriously disputed that Ruebel Bros. were, in fact, the owners and consignees, though for some reason the contract between the parties exhibits one J. B. Carter to be the shipper. We find no controversy over this was made on the trial. And trial seems to have been proceeded with on the theory that these plaintiffs were the real parties in interest. It is true that, as one ground of the motion to direct verdict, it was stated:

"Plaintiff has not shown a right to recover in this case. Plaintiff is not the real party in interest, as disclosed by the contract; that the consignee is not shown to have released any right that he might have for a right to recover for any loss on this shipment; and that plaintiffs do not disclose that they reserved any rights, as between them and the party to this contract, to demand any damages for and on account of the failure of the hog to arrive at his destination, and inasmuch as the contract shows that J. W. Carter is designated as the shipper, he is the only man who has been damaged in this case under this contract."

But the errors relied on for reversal make no reference to this point, beyond the blanket complaint that it was error to overrule the motion of defendant to direct verdict "upon the grounds set out in the said motion" (which are distinct and very numerous). No reference whatsoever is made to it in the brief points. No mention thereof is made in the argument in extenso. It is not mentioned in the exceptions to instructions taken before motion for new trial was filed.

We shall not disturb the judgment for lack of standing of the plaintiffs.

V. The brief and argument for the appellant has numerous complaints to the effect that the court refused to submit certain stated matters. Nothing may be found in the exceptions taken, or in the error points stated, which asserts a failure to give any instruction or to submit any theory. The exceptions and the error points, so far as they deal with the charge, confine themselves to complaints of instructions that were given. They nowhere predicate complaint upon omission to instruct. The argument for appellant confuses a failure to instruct with a refusal to instruct. In the last analysis, the complaints assert nothing but mere paucity. Since no instructions were offered, that complaint is not tenable.

In this connection, it may be noted that some of the complaints aforesaid have reference to failures on part of the court, in stating the issues, to set forth some of the negligences and misbehavior on the part of defendant, asserted by plaintiff. Surely, defendant was not prejudiced, whatever might be said by his adversary, had it been defeated, because the court omitted to present some of the accusations which plaintiff had lodged against defendant.

VI. Section 5 of the contract made by these parties provides that defendant shall not be liable for the conduct or acts of animals to themselves or to each other, such as biting, kicking, goring, or smothering, nor for loss or damage arising from the condition of the animals themselves, or which results from their nature or propensities. Instruction 6 is complained of because it charged as follows: This defendant common carrier "cannot limit its liability as an insurer of the safe transportation and delivery of live stock entrusted to it, except to provide that it shall not be liable for loss or injury occasioned by the act of God, the public enemy, or resulting from the disposition, nature, or propensities of the live stock transported, or resulting from the acts of plaintiffs themselves." Immediately following this quoted statement, the jury was further told that the contract provision quoted had no binding force or effect as between these parties; that it in no manner affects the right of the plaintiff to recover in this action; and that the jury should, therefore, wholly disregard said contract provision. The reason why this was instructed was, however, also stated. The instruction stated that this was said to the jury because, without any contract, the defendant has the benefit of such exemption by virtue of existing law. Most clearly, no injury was suffered by the defendant from an instruction which told the jury that it should disregard a contract containing specified exemptions, because such contract was immaterial, in that, without it, the defendant was exempted from everything against which said portion of its contract protected it.

If there was error, it does not consist of...