The Terre Haute and Logansport Railroad Co. v. Sherwood

• Decision Date: 13 September 1892
• Docket Number: 15,478
• Citation: 31 N.E. 781,132 Ind. 129
• Parties: The Terre Haute and Logansport Railroad Company v. Sherwood et al
• Court: Indiana Supreme Court

31 N.E. 781

132 Ind. 129

The Terre Haute and Logansport Railroad Company v. Sherwood et al

No. 15,478

Supreme Court of Indiana

September 13, 1892

From the Marshall Circuit Court.

Judgment affirmed.

J. G Williams, H. Corbin and C. Kellison, for appellant.

O. M Packard, C. P. Drummond and A. C. Capron, for appellees.

OPINION

Elliott, C. J.

The demurrer of the appellant is clumsily drawn, and it is difficult to determine whether it shall be treated as addressed to the entire complaint or as addressed distributively to each paragraph of that pleading. It reads thus: "Come now the defendants and demur severally to each paragraph of the complaint as amended, because the same does not state facts sufficient to constitute a cause of action against defendants." We regard the demurrer as a several one addressed to each paragraph of the complaint. The demurrer employs the term "severally," as directed against each paragraph, and the words "the same" must be regarded as referring to each paragraph, and not to the entire complaint. Our conclusion is supported by the cases of Silvers v. Junction R. R. Co., 43 Ind. 435; Stribling v. Brougher, 79 Ind. 328; Mitchell v. Stinson, 80 Ind. 324; Clodfelter v. Hulett, 92 Ind. 426; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75, 10 N.E. 631. The language employed in the demurrer before us is different from that used in Baker v. Groves, 1 Ind.App. 522, 27 N.E. 640, and the cases are, therefore, to be discriminated. The case referred to goes quite as far as the authorities warrant, and we are not willing to extend its doctrine.

The first paragraph of the complaint contains these allegations: That the plaintiffs are partners; that as such they made a contract with the defendant, a common carrier, to transport eighty horses from East St. Louis, Illinois, to Plymouth, Indiana; that the plaintiffs delivered the horses to the defendant and paid the freight thereon as fixed by the contract; that the defendant "undertook to carry safely and securely for the plaintiffs;" that "the defendant did not carry and deliver the horses, but failed to do so, whereby they were wholly lost to the plaintiffs." The contracts under which the horses were shipped, three in number, were made part of the paragraph by reference, and appear in the record as exhibits. The contracts incorporated in the pleading are the same, except as to dates, numbers and amounts, so that it is only necessary to copy the material parts of one of the three instruments. The parts deemed material by us read as follows: "Whereas, the Terre Haute and Indianapolis Railroad Company transport live stock only at first-class rates, as per their merchandise tariff, unless said company be released from all claims for damages resulting from the causes hereinafter specified. Now, for the purpose of obtaining transportation of the live stock hereinafter mentioned at the reduced rate granted by said company in consideration of being so released, this agreement made between said company, party of the first part, and Sherwood and Swoverland, parties of the second part, witnesseth, that, in consideration of being released from liability, as hereinafter specified, the said company agrees to transport one car load of horses from East St. Louis to Terre Haute, and forward the same from the last named station to Plymouth, Ind., via the T. H. L. Railroad, and agrees that the through rate to Plymouth shall not exceed fifty-two dollars per car and advanced charges; and further agrees to furnish free passage for one person entrusted by said party of the second part with the control of said animals while in transit. And it is expressly agreed, that the said company shall not be liable for any damages which may occur while said animals are being loaded or unloaded, or which may result from their being wild, vicious, unruly or weak, or their escaping or dying, or from their injuring or killing themselves or each other; or from heat, suffocation or improper loadings, or securing in the car or cars, or from said animals being crowded, or from the burning of hay or other material; nor shall the company be liable for delay in transportation, nor for any loss or damage of any kind after delivery at the station from which the company has agreed to forward said animals. The party of the second part agrees to send with said stock one or more men, as may be necessary to care for said stock while in transit, and to load, unload, feed and water said animals at his own risk and expense, the said company furnishing the necessary labor to assist (while in transit over its lines), under the direction and control of the person, put in charge thereof by the party of the second part."

The familiar rule is that each paragraph of a complaint must be good in itself, and must proceed upon a definite theory. Montgomery v. Craig, 128 Ind. 48, 27 N.E. 427, and cases cited; Mescall v. Tully, 91 Ind. 96.

The theory upon which the paragraph of the complaint under immediate mention proceeds is that the appellant is liable to the appellees in damages for a breach of a special contract. There are no allegations indicating that the pleader assumed to state a cause of action in tort; on the contrary, all of the allegations indicate that the pleader assumed to state a cause of action upon the special contracts incorporated in the pleading. The pleading is based solely upon the special contracts, and not upon any general or implied agreement or undertaking. The question, therefore, is this: Does the first paragraph state facts constituting a cause of action for a breach of the special contracts?

We suppose it entirely clear that where a plaintiff declares upon a special contract he must state facts showing an actionable breach of that contract, and that he can not recover upon any contract except that upon which he specially declares. Lake Shore, etc., R. W. Co. v. Bennett, 89 Ind. 457; Hall v. Pennsylvania Co., 90 Ind. 459; Fry v. Louisville, etc., R. W. Co., 103 Ind. 265, 2 N.E. 744; Indianapolis, etc., R. R. Co. v. Remmy, 13 Ind. 518. It is, as is well known, a settled rule of pleading that the complaint must state a complete cause of action. It is true, as appellant's counsel assert, that a complaint must affirmatively show that the defendant is in culpable default. Lime City, etc., Ass'n v. Wagner, 122 Ind. 78, 23 N.E. 689. These rules would determine the question as to the sufficiency of the pleading against the appellees if it could be assumed that it was essential to the existence of a cause of action for them to aver that the failure to transport was not attributable to some one of the causes or perils from which the carrier is released by the special contract. But this can not be always assumed, even where there is a special contract limiting liability. While there is a stiff contest among the authorities as to the burden of proof in such cases, we incline to the opinion that the true rule is, where the articles carried are not live stock, and there is no agreement that the owner's agent shall have charge of the property, the burden is upon the carrier to show that the injury or loss to the shipper was attributable to one of the causes or perils against which the special contract secures immunity.

The text-writers generally declare this doctrine. One of them says: "The shipper in the first instance makes out his case by proving his contract and the non-delivery of the goods. The burden of proof is then on the carrier to bring himself within the exemption clauses of the bill of lading or, in other words, to show that the loss happened by one of the excepted perils. The reason is obvious. The goods were in his custody, and he is bound like all other bailees to account for their loss, if they are lost. The rule is the same where the goods are delivered in a damaged condition. The carrier must show that the damage was caused by one of the excepted causes or perils." Wheeler Carriers, 252. Another author says: "The burden of proving that a loss which has occurred falls within the exemptions provided for by the contract rests ordinarily upon the carrier. But where the loss occurs from such a cause that the law will not presume negligence, or where the loss happens from an excepted cause, as from fire, the burden of proving the carrier's negligence is, by the weight of authority, upon the plaintiff." Hutchinson Carriers (2d ed.), sections 259a, 736. The rule that the burden is ordinarily on the carrier is supported by principle, and is a just and salutary one. The special contract, although it may release the carrier from some obligations and duties, does not take from him his character as a common carrier. As said by the court in Witting v. St. Louis, etc., R. R. Co., 28 Mo.App. 103: "Though the goods may be carried under a special contract, relieving him from the liability of an insurer, still he is none the less a common carrier." In Railroad Co. v. Lockwood, 84 U.S. 357, 17 Wall. 357, 21 L.Ed. 627 (376), the court said: "But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier be a corporation for the purpose of a carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character." As the special contract does not take away the character of a common carrier, there remains, notwithstanding the express stipulations of the contract, certain obligations imposed by the law of the land, and these enter into the contract as silent factors. Long v. Straus, 107 Ind. 94, 6 N.E. 123. These obligations, although implied, are essential parts of the contract, and among them is the obligation...