Snow v. The Indiana, Bloomington And Western Railway Co.

• Decision Date: 04 January 1887
• Docket Number: 12,840
• Citation: 9 N.E. 702,109 Ind. 422
• Parties: Snow et al. v. The Indiana, Bloomington and Western Railway Company
• Court: Indiana Supreme Court

9 N.E. 702

109 Ind. 422

Snow et al. v. The Indiana, Bloomington and Western Railway Company

No. 12,840

Supreme Court of Indiana

January 4, 1887

Petition for a Rehearing Overruled Feb. 5, 1887

From the Clinton Circuit Court.

The judgment is affirmed, with costs

G. W Paul, J. E. Humphries, T. F. Davidson, F. M. Dice, S. O Bayless and W. M. Reeves, for appellants.

C. W Fairbanks, W. R. Moore and O. Gresham, for appellee.

OPINION

Mitchell, J.

The plaintiffs below brought this suit against the railway company to recover damages for an alleged breach of a contract for the shipment of a car load of horses from Crawfordsville, Indiana, to Buffalo, New York, en route to Boston, Massachusetts.

At the time the horses were delivered for shipment by the appellant's agent, the latter received from the railway company a bill of lading which contained, among other stipulations, the following:

"Live Stock Contract--The Indiana, Bloomington and Western Railway.

[SEE EXHIBIT IN ORIGINAL]

Consigned, numbered and marked as per margin, to be transported by the Indiana, Bloomington and Western Railway, to its freight station at Indianapolis, ready to be delivered to the consignee, or his order, or (if the same is to be forwarded beyond said station) to the agent of a connecting railroad or forwarding company, whose line may be considered a part of the route, to the place of destination designated in the margin, to be in like manner forwarded and delivered to, and by each succeeding railroad or forwarding company in the route, until it reaches the point contracted for in this bill of lading."

It was assigned as a breach of its contract, that the railway company received the horses, and carried them by its own line to Indianapolis, after which, instead of delivering them to the "Bee-Line Route," as it was alleged it had agreed to do, it delivered them to the "Nickel-Plate Road," which, by reason of the latter being the longer route by about three hundred miles, delayed the horses in arriving at Boston some four days beyond what would have been required by the other route. By reason of this delay, and the unfitness of the route chosen, it is alleged the horses sustained permanent injury. It is also alleged that the failure to ship by the "Bee-Line Route" was a violation of the contract of shipment.

The complaint is in two paragraphs. The bill of lading was made a part of the first paragraph. Both paragraphs count upon the violation of an alleged agreement to ship from Indianapolis to Buffalo, N. Y., by the "Bee-Line Route."

The defendant answered by a general denial. The case was submitted for trial to a jury. Under instructions from the court the jury returned a verdict for the defendant.

At the trial the plaintiffs produced W. H. Schooler, their agent at Crawfordsville, Indiana, and by suitable questions, addressed to him while testifying as a witness, proposed to prove that prior to the shipment of the horses, the plaintiffs, through the witness, made a contract with the agent of the railway company, by which it was agreed that the company should ship the horses by its route to Indianapolis, thence by the "Bee-Line Route" to Buffalo, N. Y. The plaintiffs proposed to prove further, that it was agreed that the horses were to be unloaded at Gallion, Ohio, a regular feeding point on the route last above mentioned, and that after being fed and watered, they were to be again reloaded, and carried by that route to Buffalo. They proposed to prove further that the defendant had carried other car loads of horses for the plaintiffs, under this same arrangement, which was by parol, and that they had been carried over the Bee-Line road.

The bill of lading having been exhibited to the court, and it having been made to appear that the shipment in question had been made by the company, after such bill of lading had been delivered to and received by the plaintiffs' agent, the court excluded all evidence relating to any parol agreement covering the subject of the shipment. Whether such evidence was admissible is the only question presented for consideration.

The appellants contend, there being no route stipulated in the bill of lading, that it became the duty of the appellee to forward the horses by the usual and most direct route from Indianapolis to Buffalo, and that hence the evidence offered should have been received.

This proposition is in part abundantly maintained, but this does not meet the point in dispute. Having taken a bill of lading which upon its face designates no particular route by which the horses were to be forwarded, after reaching the terminus of the appellee's line, was it competent nevertheless to prove a parol agreement to forward by a...