Winn v. Am. Express Co.
| Decision Date | 16 November 1910 |
| Citation | 149 Iowa 259,128 N.W. 663 |
| Parties | WINN v. AMERICAN EXPRESS CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Hugh Brennan, Judge.
Action for damages for the value of a boar alleged to have been delivered to the defendant for transportation on August 30, 1907, at Des Moines. Answering the petition, the defendant pleaded certain affirmative matter. Upon motion of the plaintiff, certain portions of such affirmative matter so pleaded in the answer were stricken, on the general ground that the affirmative matter so assailed did not constitute any defense either in whole or in part. From such ruling of the trial court, the defendant has appealed. Reversed.Guernsey, Parker & Miller, for appellant.
Franklin & Miller, for appellee.
This appeal on its face presents questions whether certain affirmative matters were properly pleaded by the defendant in answer to the plaintiff's petition. Before we can appropriately consider such questions, however, we are confronted with the preliminary difficulty of determining the construction which should be put upon the plaintiff's petition. Plaintiff is assignee of the shipper. For the purpose of this discussion, it will be more convenient of speech for us to ignore the assignment and refer to the shipper as the plaintiff. The petition asks to recover of the defendant $8,000 as the alleged value of a boar which was delivered to the defendant on August 30, 1907, at the State Fair Ground at Des Moines to be transported to a point in Nebraska. The hog was transported by the defendant from the State Fair Ground to the railroad station in the city, and was unloaded from the wagon to the railroad trucks preparatory to being placed in a car. Within five minutes after it had been placed upon such truck, and before it had been loaded in the car, it died. The ground upon which the defendant's liability is predicated in the petition is involved in uncertainty, and the respective arguments of the parties upon the main questions are based upon differing constructions of the petition. Taking one view of the petition it projects itself along three lines of attack, namely: (1) A breach by defendant of the written contract, which is set out in full and of a special verbal contract concurrent therewith; (2) alleged negligence predicated upon the breach of such contracts; (3) negligence.
Omitting that part of the petition which sets forth the written contract and alleges delivery of the hog thereunder, we quote therefrom as follows:
“That the said American Express Company agreed to haul the said boar to the Lincoln car, in a single covered wagon, by himself. That when the said J. J. Ward delivered the said boar to the said express company, the said company loaded the said boar in a transfer wagon with nine other crated hogs. That the said express company placed one crate in front of, another crate on top of, and one crate on each side of, the said boar, “Statesman,” completely cutting off the circulation of air from him. That the night of the 30th of August, A. D. 1907, was a very hot one, and that the boar, a short time after he was loaded, began to suffer greatly with the heat.
That the said boar at the time he was delivered to the said express company, was in good, sound condition.
That the said wagon, containing the said boar, was driven by the driver to the office of the said express company, and that the said driver selected the roughest route over which to haul the said boar. That the said driver of the wagon did drive the same across many railroad tracks on the way to the express office, and when he arrived there he was ordered to take the said boar to the Lincoln car, and unload him therein.
That the said driver recrossed the said tracks and proceeded to the Lincoln car. That he was told that he could not unload the said hog there, and that the said wagon and the hogs therein were driven back across the said tracks to the office of the said express company, whereupon the driver reported for further orders. That at this time the said J. J. Ward entered the said office of the said express company and asked those in charge if they could not help him get the boar unloaded, and further told them that the said boar was a very valuable one, and that the said boar was suffering greatly from the heat. That the said parties in charge of the said office told the said J. J. Ward that they could do nothing for him.
That thereupon the said driver of the said wagon was instructed to haul the said boar across the tracks and unload him on a truck. That the said driver did recross the said tracks and unloaded the said boar upon a truck, and that five minutes after the said boar was unloaded he was dead. That the said American Express Company did negligently load the said boar in the said transfer wagon with nine other hogs. That the said American Express Company did negligently load the said hogs so as to shut off the free circulation of air from the said boar “Statesman.”
That the said American Express Company did negligently drive the said wagon with the said boar therein over a very rough route; there being a much better and smoother route they could have selected. That the said American Express Company did negligently handle the said boar from the time they received him until he was unloaded, five minutes before his death, and failed wholly to use any care whatever with the said boar.
That the driving in a careless manner over the rough roads and across the said railroad tracks, many and divers times, did greatly shake up, jolt, and jostle the said boar, and did heat up the said boar to a dangerous temperature.
That the said J. J. Ward was free from any and all contributory negligence whatever.
That the said American Express Company, by their said negligence, caused the death of the said boar.”
It is the claim of appellant that this petition should be construed as predicating liability upon a breach of the contracts set forth. Plaintiff's counsel, however, contend in argument that the action sounds solely in tort, and that the claim of liability is predicated wholly upon a breach of duty as a common carrier, and that all reference in the petition to the contracts is mere surplusage, pleaded inadvertently or by way of inducement.
In its answer to the petition, the defendant, among other things, pleaded as follows:
“(1) That it is provided in the contract, Exhibit A to the plaintiff's petition, among other things, as follows: ‘The shipper agrees to load, transship, and unload said animals at his own risk, and, during the transportation thereof, to unload and load the said animals whenever the same may be necessary or required, at his own risk, and to furnish the necessary laborers therefor; and further agrees to cause the necessary attendants to accompany and take charge of said animals, the express company furnishing free transportation for the attendants who have signed the attendants' contract appended hereto, and also furnishing laborers to assist in loading and unloading said animals at the point of shipment and destination, such attendants and laborers not to be regarded, deemed or taken to be the agents of the express company for any purpose whatever, but, on the contrary, such attendants and laborers, shall be deemed and taken to be the agents of the shipper.’
(2) That one of the owners of the animal in question was present when the said animal was loaded upon the transfer wagon referred to and accompanied the said animal upon the said wagon to the railroad station, and was with it continuously from the time it was loaded until its death; and that whatever was done in connection with the transportation of the said animal was done with the concurrence and approval of the owner thereof and without protest or objection from him; and that all precautions suggested by him for its welfare were adopted and followed out.
(3) This defendant further respectfully shows to the court that the tariff of rates applicable to the transportation covered by the contract attached to the plaintiff's petition made no provision for special services whereby the animal in question could be hauled to the cars in a single covered wagon, by itself; and that in the absence of such a provision in said tariff, no agreement could legally be made for said service.
(4) This defendant further respectfully shows to the court that the tariff of rates under which the shipment in question was made provided a schedule of alternative rates based upon the value of the animal shipped. That the plaintiff's assignors, in order to secure the transportation in question at less than the published tariff rates, wrongfully misrepresented the value of the animal in question, and stated the same to be fifty ($50), when, as a matter of fact, the value of the said animal at the time, if it was then in good health, was much in excess of the sum of fifty ($50) dollars, which fact was known to the plaintiff's assignors at the time that the said valuation was given, but was not known to the defendant, which, at the time had no knowledge as to the value of the animal in question except that obtained from shippers thereof.
That by reason of the premises, the shipment in question was unlawful. That the plaintiff is not entitled to recover, and is estopped from asserting that the value of the animal in question was, at the time of the said shipment, more than the sum of fifty ($50) dollars.
This defendant further respectfully shows to the court that by the terms of the contract sued on, the recovery of the plaintiff, if he is entitled to recovery, is expressly limited to the sum of fifty ($50) dollars and denies that the plaintiff could, in any event, recover more than said amount.”
The four paragraphs, or divisions, above set forth are those which were stricken by the trial court, of which ruling complaint is made on this appeal. These paragraphs are numbered in the record as above indicated, and we...
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