The Louisville, New Albany And Chicago Railway Co. v. Godman

• Decision Date: 07 January 1886
• Docket Number: 11,696
• Citation: 4 N.E. 163,104 Ind. 490
• Parties: The Louisville, New Albany and Chicago Railway Company v. Godman et al
• Court: Indiana Supreme Court

4 N.E. 163

104 Ind. 490

The Louisville, New Albany and Chicago Railway Company v. Godman et al

No. 11,696

Supreme Court of Indiana

January 7, 1886

From the Tippecanoe Superior Court.

The judgment is reversed, with costs, and the cause remanded with instructions to sustain appellant's motion for a new trial, and to grant leave to appellees to amend their complaint.

W. F Stillwell, for appellant.

G. O Behm, A. O. Behm, B. W. Langdon and T. F. Gaylord, for appellees.

OPINION

Zollars, J.

The following is the only portion of appellees' complaint that needs to be here set out, viz.: "The plaintiffs complain of the defendant and say, that the defendant is a railroad corporation operating a line of railroad between Battle Ground City, in said county, and the city of Chicago, in the State of Illinois, and that at and before the time hereinafter named, said defendant held out to the general public, and caused to be known, that it was a common carrier of freight, stock and cattle, from said Battle Ground and other stations on the line of said railroad between said Battle Ground and said Chicago, and that said defendant had suitable and proper appliances to load and receive stock and cattle at said station; that relying on said representations of the defendant, the plaintiffs applied to the agent of the defendant at said Battle Ground, on the 10th or 11th day of August, 1882, to have shipped by the 16th day of August, 1882, from said Battle Ground to the union stock-yards in said Chicago, by said defendant, seventeen head of fat cattle, the property of the plaintiffs, for the purpose of making sale of said cattle, which purpose and object of the plaintiffs in so shipping said cattle was known at the time by said agent; that the said defendant then, on said 10th or 11th day of August, agreed to and with the plaintiffs to receive and ship said cattle on the 16th day of August, 1882, and that the cattle should be delivered in said union stock-yards at eight o'clock a. m., August 17th, 1882, in consideration of the payment by the plaintiffs to the defendant for the freight or carriage of the cattle the sum of twenty-five (25) dollars, payable on the delivery of said cattle at said yards in Chicago; that plaintiffs, relying upon the representations and promises of the defendant, delivered the cattle, at an expense of $ 100, according to the terms of said understanding, at the stock-yards of the defendant at Battle Ground, August 16th, 1882, in full time to ship said cattle. The plaintiffs say that the defendant, by reason of its failure to keep in repair and maintain means and ways to put the cattle on the cars (of which plaintiffs had no knowledge) of the defendant, after the cattle had been driven to Battle Ground and placed in the yards, refused to ship the cattle from Battle Ground station."

Following these averments are the further allegations that, by reason of such refusal, appellees were compelled to drive their cattle to another station on the line of appellant's road; that they were shipped from that station on the next day, and hence did not reach Chicago on the morning of the 17th of August. It is further averred, that the driving of the cattle to the second station necessitated the expenditure of $ 25; that by reason of that drive they lost in weight, and that the delay in reaching Chicago resulted in loss, by reason of a declining market. For these several alleged losses, compensation is asked in the way of damages.

One of the errors assigned here is, that the court below erred in overruling appellant's demurrer to the complaint.

Appellees' theory is, that the gravamen of the action is the failure of the company to maintain and keep in repair proper ways and means for loading the cattle into the cars. If that theory should be adopted, we think the complaint would be insufficient. There is no charge that the railway company had not constructed such means and ways, nor that, as constructed, they were not proper and suitable. What is averred of them is more in the way of recital than of a positive averment of facts. But, regarding it as the averment of facts, it amounts to no more than that the ways and means for loading were out of repair. The word "maintain," used as a verb, does not mean to provide or construct, but, as defined by lexicographers, means to keep up, to keep from change, to preserve. Worcester's Dictionary. To hold or keep in any particular state or condition, to keep up. Webster's Dictionary.

In the case of Moon v. Durden, 2 Exchequer R. 21, it was said: "The verb 'to maintain,' in pleading, has a distinct technical signification. It signifies to support what has already been brought into existence."

The extent to which the ways and means for loading the cattle were out of repair is not stated in the complaint, nor is there any averment that they were so out of repair that the cattle might not have been loaded; and hence, as we have said, if the failure to keep in repair be regarded as the gravamen of the action, the complaint is insufficient, and the demurrer should have been sustained.

Regardless of any theory of counsel in the conduct of the trial and in the construction of the complaint, we must pass upon it as it comes before us. The proper construction of the complaint is, that the railway company violated its contract and committed a wrong in refusing to receive and carry the cattle from Battle Ground. This is the gravamen of the action. Having thus refused, it is not material nor important what other wrong or neglect upon its part may have been the cause of the refusal; and hence what is averred in relation to the means and ways for loading the cattle, is not essential to the sufficiency of the complaint, nor is it important in determining the sufficiency thereof.

It is argued by counsel for appellant, that the complaint is bad, because there are no averments that appellees delivered, or offered to deliver, the cattle to appellant. The averments are not very specific, but we think they are sufficient to withstand the demurrer.

It is averred that the railway company "agreed * * to receive and ship said cattle"; that appellees "delivered said cattle, * * * according to the terms of said understanding, at the stock-yards of the...