The Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Hayes
| Decision Date | 05 June 1913 |
| Docket Number | 21,616 |
| Citation | 104 N.E. 581,181 Ind. 87 |
| Parties | The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Hayes et al |
| Court | Indiana Supreme Court |
Rehearing Denied January 14, 1914, Reported at: 181 Ind. 87 at 106.
From Decatur Circuit Court; Marshall Hacker, Judge.
Action by Cephas S. Hayes and others against The Cleveland Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiffs, the defendant appeals.
Affirmed.
Davison Wilson, Carter & Morrison and Isaac Carter, for appellant.
John E Osborn, for appellees.
This was an action by appellees against appellant for damages alleged to have been sustained upon shipment of a carload of mules from Greensburgh, Indiana, to Atlanta, Georgia, January 14, 1907. The complaint is in four paragraphs. The first and third count upon a common-law liability, while the second and fourth count upon a shipment under a written contract made an exhibit of each of those paragraphs. No question is presented as to the complaint.
Appellant filed answer in five paragraphs, four of which were affirmative, the first being in general denial, and to the fourth and fifth paragraphs demurrers for want of facts were sustained. The second paragraph of answer counts upon the same contract as the second and fourth paragraphs of complaint, a general bill of lading for the shipment of the mules from Greensburgh, Indiana, to Atlanta, Georgia, by one Hamilton who was made a defendant and who filed a disclaimer. It is alleged in each paragraph of the complaint that immediately after the bill of lading was issued to Hamilton as consignee, he had sold the mules to appellees before they were injured, though it is alleged in each of the two paragraphs counting upon the written contract, that Hamilton delivered the mules to appellant for, and consigned to appellees; and in the contract itself is a clause wherein appellees by name, acknowledge their option to ship on a limited liability contract, in which respect the copy of the contract, set out in appellant's brief, does not correspond to the copy in the record, or the copy relied on by appellant. The exhibit with the complaint sets out a written memorandum signed by Hamilton, directing the delivery of the mules to appellees; this memorandum is not set out as a part of the exhibit filed by appellant. There is also a discrepancy between the contract as set out by appellees and the one counted on by appellant, in that, in the copy set out by the latter with its answer, there is a copy of assumption by Hamilton as man in charge, of all risk of injury in transportation, which is omitted from appellees' exhibit.
The basis of the defense under the second paragraph of answer is, (1) that the contract was fair and freely entered into by Hamilton after he had been given a bona fide and full opportunity to ship at a fair rate without limitation of the common-law liability, by which he secured a less rate, alleging it to be the kind of contract usually made, and the consideration, the agreement to transport according to the terms of the contract, and that the latter was reasonable; (2) that by the terms of the contract, a verified claim for damages was required to be made within five days from the time the stock was removed from the cars, and that such claim was not filed; (3) that the damages arose from overloading, crowding, kicking, suffocation and fright, which were released by the terms of the contract. The third paragraph is the same as the second, except that it omits any allegations of damages from "overloading, crowding, kicking, suffocation and fright," but avers that appellant did not undertake to carry beyond Cincinnati. The fourth paragraph is the same as the third, except that it alleges that it undertook to carry only to Cincinnati, and there deliver to a connecting carrier, known by the terms of the contract as the Queen and Crescent Line; that appellant had no line beyond Cincinnati; the other line did connect Atlanta and Cincinnati; that it delivered the stock in good condition to the connecting carrier; that no loss or injury occurred while in appellant's possession, and that they were afterward injured, if at all; that appellant did not undertake or contract for the negligence of another carrier; that the clause of the Interstate Commerce Act attempting to make it responsible is invalid, because, (1) it deprives appellant of its property without due process of law, and (2) it attempts to take its private property from it without its consent, and give it to another. The fifth paragraph is the same as the fourth except that it alleges that "Hamilton selected the route over and by which said mules were to be shipped after they left defendant's road." The errors relied upon are the action of the court in sustaining demurrers to the fourth and fifth paragraphs of answer.
It had long been the settled rule prior to the going into effect of the act of 1905 , that where a complaint, such as the first and third paragraphs, counts upon an oral contract of shipment of property, it may be shown under the general denial that the shipment was under a written contract, and thus defeat a recovery. Snow v. Indiana, etc., R. Co. (1886), 109 Ind. 422, 426, 9 N.E. 702; Bartlett v. Pittsburgh, etc., R. Co. (1883), 94 Ind. 281; Hall v. Pennsylvania Co. (1883), 90 Ind. 459; Lake Shore, etc., R. Co. v. Bennett (1883), 89 Ind. 457, 471; Jeffersonville, etc., R. Co. v. Worland (1875), 50 Ind. 339; Indianapolis, etc., R. Co. v. Remmy (1859), 13 Ind. 518; Pennsylvania Co. v. Walker (1902), 29 Ind.App. 285, 64 N.E. 473; Parrill v Cleveland, etc., R. Co. (1899), 23 Ind.App. 638, 55 N.E. 1026; Stewart v. Cleveland, etc., R. Co. (1898), 21 Ind.App. 218, 226, 52 N.E. 89; Sanders v. Hartge (1896), 17 Ind.App. 243, 46 N.E. 604; Baltimore, etc., R. Co. v. Ragsdale (1895), 14 Ind.App. 406, 42 N.E. 1106; Indianapolis, etc., R. Co. v. Forsythe (1892), 4 Ind.App. 326, 29 N.E. 1138. This was only an application of the rule that where an oral or implied contract is declared on, there can be no recovery upon a written contract, and whenever a written contract is sued on, recovery cannot be had upon an oral or implied contract. Paris v. Strong (1875), 51 Ind. 339; Pennsylvania Co. v. Walker, supra; Sanders v. Hartge, supra; 4 Ency. Pl. and Pr. 922-927. We have recently held the act of 1905 superseded by the Interstate Commerce Act, as applied to interstate shipments. Wabash R. Co. v. Priddy (1913), 179 Ind. 483, 101 N.E. 724. As to the facts set up in the fourth paragraph, they were such, and such only as the contract itself disclosed, except the fact that appellant had no line of its own from Cincinnati to Atlanta. As to the fifth paragraph, the only facts alleged which were not disclosed by the contract itself were that appellant's line did not reach Atlanta, and that Hamilton routed the shipment after it left appellant's line but, with the contract in evidence, these facts could have been shown under it, and under the general denial, if they constituted a defense, under the rule that anything may be shown under that plea which will disprove what a plaintiff is bound to show, and if under the contract there was no liability, under those facts, a defense would be made out, so that there could be no reversible error in sustaining the demurrers to those answers.
Upon the motion for a new trial, complaint is made of the giving of instructions Nos. 2, 3 and 4, requested by appellees. It is conceded by appellant that these instructions present the one question whether the Interstate Commerce Act in fixing liability upon the primary carrier, violates the 5th and 14th amendments to the Federal Constitution, as depriving appellant of its property without due process of law. Instruction No. 2 is to the effect that as the property involved in this suit was transported from a point in one state to a point in another state, this would constitute interstate commerce, and the liability and duty of the railroad company in regard to such shipment is regulated by the law of the United States, and that the act of Congress is as follows: (Sets out the Carmack amendment, § 20, U.S. Comp. Stat. Supp. 1911 p. 1307). Instruction No. 3 informs the jury that if it finds that appellant received the mules for shipment from one state to another, it was liable for any loss, damage or injury caused by appellant or by any other carrier over whose line the shipment passed, whether such loss, damage or injury occurred on appellant's line, or on the line of some other carrier between the two points. Instruction No. 4 defines the duties prescribed by the act of Congress in regard to common carriers feeding, watering and resting animals in shipment, and quotes § 1 Acts of Congress, June 29, 1906, U.S. Comp. Stat. Supp. 1911 p. 1341.
The objections urged to these instructions involve the validity of the act, the grounds of objection being stated thus, with reference to all three, as raising the same question: (1) because it assumes to make the appellant, as the initial carrier, liable for the wrongful act or default of the connecting carriers which were not the agents of appellant and over which the appellant had no control; (2) because it assumes to make the appellant, as the initial carrier, liable for a loss occasioned by the connecting carriers, and against which loss the appellant expressly contracted, it should not be liable; (3) because it assumes to make the appellant, as the initial carrier, liable for a loss occasioned by the act of God or the public enemy, while the property was in the possession and control of connecting carriers; (4) because it assumes to make the appellant, as the initial carrier, liable for...
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