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initial carrier, to pay to the appellees the property could be required to be received for judgment rendered in their favor, though the through shipment, until the rate had been damage to the property was done by a con- established. See, also, Southern, etc., Co. v. necting carrier, and in so doing necessarily Burlington Co. (1912) 225 U. S. 99, 32 Sup. takes from appellant all money necessarily Ct. 657, 56 L. Ed. 1001. expended by it in paying costs made by it, By the provisions of section 15 of the act, and in employing counsel to defend it against “in all cases where at the time of delivery the suit brought by the appellees against it. of property

for transportation (9) Because it assumes to make the appel- *

to any point of destination, between lant, as the initial carrier, responsible for which and the point of such delivery for loss to property while the same was in the shipment two or more through routes and possession of a connecting carrier, or under through rates shall have been established, its control. If the property passes over the

the person

making such lines of two or more connecting carriers, the shipment

shall have the right to initial carrier has no means of knowing which designate in writing by which of such carrier injured the property, and will be through routes such property shall be transcompelled to engage in expensive litigation ported,

and it shall thereupon be to ascertain, according to the provisions of the duty of the initial carrier to route said this act, which one is liable. And if it is property and issue a through bill of lading found in such litigation that the injury therefor as so directed, and to transport said for which the initial carrier must respond property over its own line or lines and dewas occasioned by two or more connecting liver the same to a connecting line or lines carriers, the provisions of the act, which pro- according to such through route, and it shall vide that the initial carrier shall recover be the duty of each of said connecting carfrom the connecting carrier the amount of riers to receive said property and transport the judgment obtained against the initial car- it over the said line or lines and deliver the rier, are necessarily futile, and furnish no re- same to the next succeeding carrier or conlief to the innocent initial carrier.

signee according to the routing instructions It may be conceded that those propositions in said bill of lading: Provided, however, that are forcibly put and challenge the validity the shipper shall in all instances have the of the act, so that the question resolves it right to determine, where competing lines of self into one of the power of Congress.

railroad constitute portions of a through line [2] The sections of the Interstate Com- or route, over which of said competing lines merce Act which are involved in the question so constituting a portion of said through line are 6, 15, and 20, U. S. Comp. Stat. 1911, pp. or route his freight shall be transported.” 1291, 1299, 1307. Section 6 of the act re- | Under this clause as we construe it, in the quires that each common carrier shall file light of Southern Railway Co. v. Reid, supra, with the Interstate Commerce Commission as to the clause there under review, as there and print and keep open to public inspection can be no through shipment lawfully under"schedules showing all the rates, fares, and taken, unless a rate has been established, charges for transportation between different filed, and published, there can be no through points on its own route and points on the shipment undertaken, even where there are route of any other carrier

when a two or more competing lines in some porthrough route and joint rate has been estab- tion of the route, unless there is a rate fixed lished. If no joint rate over the through over each, so that the shipper in routing it route has been established, the several car- by one or the other is as fully informed as riers in such through route shall file, print is the carrier, when the shipment is made, and keep open to public inspection

as to the rate, and as the rate in such case the separately established rates, fares and must be made by agreement between the charges applied to the through transporta-carriers, the carrier necessarily chooses his tion.

The names of the several agent in advance, and is in no situation to carriers which are parties to any joint tar- deny that agency. If a through rate has not

. iff

specified therein, and each of been fixed, then the shipper in exercising his the parties thereto, other than the one filing common-law right of routing cannot make a the same, shall file with the commission evi- through shipment, but must make shipment dence of concurrence therein or acceptance, according to the local rates of the respective thereof, etc.

No carrier, unless lines over which the carriage may be underotherwise provided in this act, shall engage taken. The right of routing, therefore, cannot or participate in the transportation of pas- affect the contractual rights of the carrier; for sengers or property,

unless the if it has not contracted with a connecting carrates, fares, and charges upon which the rier it cannot be required to accept for through same are transported

ave been carriage, and if it does accept for through carfiled

in accordance with the pro- riage it does so under contract with the visions of this act."

connecting carrier. So the right of through In Southern Railway Co. v. Reid (1911) routing is purely contractual on the part 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257, of the carrier, except as under the act it was held, under this latter clause, that no of 1906 there is a power in the Commission


* *


* *



of another route. Central Stock-Yards Co. v. lees routed the shipment, we know that under Louisville, etc., Co., 192 U. S. 568, 24 Sup. Ct. the law, having undertaken a through ship339, 48 L. Ed. 565; S. C., 55 C. C. A. 63, 118 ment, it could be only because of a through Fed. 113, 63 L. R. A. 213; Covington v. Keith, rate, whether routed by appellees or appellant, 139 U. S. 128, 11 Sup. Ct. 469, 35 L. Ed. over the route selected; for we are bound 73; Butchers' & Drovers' Co. v. Louisville, to assume that it was done as the law reetc., Co., 67 Fed. 35, 14 C. C. A. 290. But so quires, and under a contract as to rates, and long as through shipment can only be under-carriage between the carriers. So, also, as taken upon agreed and published rates, which to the question of costs, expenses, and atthe carriers tender to the public, there can torney's fees incurred by appellant in debe no hardship in the shipper routing the car- fending the case, or ascertaining where and riage.

how the loss occurred, we are bound to as[3] The case before us being one of through sume that all such matters were the subject shipment, appellant cannot be heard to raise of contract between them, if it was necessary a moot question of constitutionality, as ap- that it be so, in order to protect the one plied to a case of routing by the shipper, against the other; but aside from the queswhere it is not a through shipment, but un- tion of contract, if one company delivers in der the local rates of each connecting car- good condition, then upon notice to defend, rier. In other words, where a through ship or by vouching in the carrier or carriers rement is undertaken, it can only be under a sponsible for the loss, or each in turn vouchcontract as to the rates, so that each sucing in its successor in carriage, the expense ceeding carrier becomes the agent of the is transferred to the party responsible for initial carrier, and liability is grounded on the loss, and at one and the same time fixes that agency and contract. So when we come the amount of the loss and the party responto the primary liability clause of section 20 sible for it. it is based upon the presumed fact, and the [5] Nor is there any ground for the posilaw, that a contract has been made between tion taken that the carrier is made responsithe carriers, because carriage cannot other- ble for the act of God or the public enemy, wise be undertaken; and it will be pre- or for the negligence of another, because by sumed that such agreement has been made, vouching in, or notice, responsibility is fixed and the question of liability under those where it belongs, and nonliability from the act conditions has been determined adversely to of God or the public enemy is a defense to appellant's contention on the ground of agency. any carrier; and as to negligence the carrier Galveston, etc., Co. v. Wallace, 223 U. S. responsible for the loss is the party which 481; 32 Sup. Ct. 205, 56 L. Ed. 516; Atlan- must respond. tic, etc., Co. v Riverside Mills (1911) 219 U. Objection is made to instructions Nos. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. 6, 7, 8, and 9 upon the same grounds; that R. A. (N. S.) 7; Pittsburgh, etc., Co. v. is, that the carrier had a right to limit its Mitchell (1910) 175 Ind. 196, 211, 91 N. E. common-law liability, and therefore to limit 735, 93 N. E. 996; Interstate Commerce the time within which claims for loss should Com'n v. Louisville, etc., Co. (C. C. 1902) 118 be filed, and the instructions requested and Fed. 613; United States v. Seaboard, etc., refused travel upon the theory, first, that as Co. (C. C. 1897) 82 Fed. 563.

the shipper voluntarily decided to ship at a And that the primary liability clause does reduced rate and a limited liability, and it not offend the due process of law clause of was so recited in the contract of shipment, the Constitution is settled. Pittsburgh, etc., the recital was evidence of a consideration Co. v. Mitchell, supra; Riverside Mills v. for the contract and of its reasonableness, Atlantic, etc., Co. (C. C.) 168 Fed. 987; and that it was fairly entered into, and Smeltzer v. St. Louis, etc., Co. (C. C. 1908) hence the agreement to file any claim for loss 158 Fed. 649; Galveston, etc., Co. v. Crow within five days from the time of unloading (Tex. Civ. App. 1909) 117 S. W. 170; Galves- must be complied with; second, that if the ton, etc., Co. v: Piper (1908) 52 Tex. Civ. shipper shipped under a limited liability conApp. 568, 115 S. W. 107. The questions of tract, in consideration of a less rate, and due process of law, taking private property, that he could have shipped without limitation and forcing an insolvent intermediate carrier of liability at a reasonable rate, and the carupon the initial carrier, and making a new rier had publicly given notice to that effect, contract for the initial carrier, are all remov- and he signed the contract without objection, ed by the fact of it having itself made the that as a matter of law he was given a bona contract as a condition of carriage at all. fide and full opportunity to ship, and the verUpon those questions see Galveston, etc., Co. dict should be for defendant on the issue of V. Johnson (Tex. Civ. App. 1911) 133 S. W. a bona fide opportunity to ship at a fair and 725; St. Louis, etc., Co. v. Heyser (1910) 95 reasonable rate without limitation of liabilArk. 412, 130 S. W. 562, Ann. Cas. 1912A, ity. 610; Missouri, etc., Co. v. Harriman (Tex. Instruction No. 6, requested by appelCiv. App. 1910) 128 S. W. 932; Louisville, lant, instructs that if under the provision of etc., Co. v. Scott (1909) 133 Ky. 724, 118 s. the written contract of shipment, reciting W. 990, 19 Ann. Cas. 392.

that the shipper had the option of shipping at [4] Furthermore, if, as is alleged, appel- a higher rate, according to the tariff rates applicable to the carriage, and thereby sê-conclusive evidence of being entered into curing the liability for the stock, and had upon a sufficient consideration after a fair voluntarily decided to ship at the lower rate, and bona fide opportunity to ship at a reathen such contract furnished evidence of sonable rate without limitation, and add as being based upon a sufficient consideration, to the question of filing the claim that if the and was fairly entered into after a bona claim was not filed within five days from fide and full opportunity to ship at a reason-removal from the car plaintiff could not reable rate without limitation of liability, and cover, and if the opportunity to inspect, should be considered as establishing those when removed from the car, was prevented facts, and if the claim was not made, as by the fault of the shipper, and not by the provided in the contract, within five days fault of the defendant, then the five-day pefrom delivery there could be no recovery. riod for presenting the claim would begin

The seventh requested instruction is to the to run from the time the mules were removeffect that if, under the contract in evidence, ed from the car. Appellant cannot complain appellee received the lesser of two rates in of these instructions as failing to cover the consideration of limitation of liability, it must ground of its requested instructions, and we be deemed to have been upon a sufficient con- must assume they were applicable to the sideration, and upon the question of the con- evidence. sideration being sufficient the jury should find [7] Objection is also raised as to the failfor the defendant.

ure to give instruction No. 5, requested by The eighth requested instruction was to appellant, and in giving Nos. 6 and 8, given the point that the provision of the contract at appellees' request. Instruction 5 went to of shipment that verified claim for shipment | the question of nonliability for failure to should be made within five days of delivery file claim for damages within five days withof the mules was a reasonable provision, out any exception, and was too broad. The and upon this allegation the jury should question was properly presented under the find for defendant.

court's instructions 6 and 7, and appellees' The ninth requested instruction was to the requested and given instruction 9, in which effect that if the jury found that appellant it is pointed out that, if the opportunity to would have shipped without limitation and inspect the mules when they were removed charged more therefor, and appellant had for from the car was refused by the carrier, a long time been and was shipping, and then the five-day period of filing claim would would have shipped, either with or without not begin to run when the mules were unlimitation, as the shipper desired, and had loaded. given notice to that effect, and that the rate [8] Instruction No. 6 was directed to the for unlimited liability was fair and reason- question of the contract being fully and fairable, and the contract was executed without ly entered upon good consideration, and the objection, that the contract was executed aft-time fixed for filing claim reasonable, and er appellee had been given a bona fide and instruction No. 8 to the question of neglifair opportunity to ship at a fair and rea-gence in watering, resting, and feeding, bassonable rate without limitation, and on this ed upon the Interstate Commerce Act of allegation of the answer the jury must find June 29, 1906. The instructions cover the for the defendant. The instruction further questions as to the proper elements of evidirects the jury that in determining the rate dence to be considered in determining those that would have been charged without limita- questions. tion of liability they might take into consid- The specific objection is that what is a reaeration the legal obligation of carriers under sonable time is a question for the jury. The unlimited contracts, describing some of them, proposition is correct, but it is unavailable and the advantages and disadvantages to the here for two reasons: First. Because appellant parties under an unlimited and a limited lia- had requested an instruction that the time bility, considered with respect to the obliga-fixed in the contract was reasonable, and untions of the carrier on the one hand, and the der that request, while the court did not added cost of carriage on the other.

give that instruction as requested, it did give [6] Standing alone, these instructions were an instruction to the precise point, and then each undoubtedly correct upon the facts stat- gave an instruction covering the question ed, under the rule as declared in the Priddy of reasonableness of time, in view of the Case; but in the absence of the evidence claim of appellees of being prevented from being set out, so that we might determine inspecting the mules when unloaded, and their applicability, we are bound to assume also gave instruction No. 6 upon the questhat they were not applicable, and that the tion of what might properly be considered sixth and seventh instructions given by the by the jury, as shown by the evidence, in court on its own motion, and the ninth giv-determining that question, and no complaint en at appellant's request, fully covered and is made of the elements stated. Instruction were applicable to the facts, for the reason No. 8 goes to the question of the evidence that the two instructions given cover all the proper to be considered by the jury in depoints in the sixth, seventh, eighth, and termining whether the animals had been ninth requested instructions, except that the properly unloaded, rested, fed, and watered, impropriety of that instruction. Second. | Priddy, supra; Illinois, etc., Co. v. HenderThe instructions do not attempt to determine son, etc., Co. (1913) 226 U. S. 441, 33 Sup. any of those questions for the jury, but ct. 176, 57 L. Ed. 290; Kansas City, etc.,

Ct simply to inform them of proper matters Co. V. Albers Com. Co., 223 U. S. 573, 32 which might be considered in determining Sup. Ct. 316, 56 L. Ed. 557; Texas & Pac. the questions.

Co. v. Cisco, etc., Co., 204 U. S. 449, 27 Objection is raised as to some items of evi- Sup. Ct. 358, 52 L. Ed. 562. dence claimed to have been properly admit- Appellant was not, therefore, bound to inted over objection and set out in the mo- form appellees of the existence of the two tion for a new trial, but no such evidence rates, and evidence admitted over objection is set out in the recital of the evidence, or of appellant as to appellees not being so ineven referred to. The only question which formed was improper, unless under no circould by any possibility be presented is one cumstances could it have been proper; othunder which it might be claimed that, stand-erwise the grounds of the objection should ing alone, a question was improper which have been stated in order to raise any quessought to learn whether the shipper had tion here, which is not shown to have been heen notified of there being more than one done, though the rule is different where the rate with differing liabilities.

question on its face is improper under any [9] The contract limits liability to $100 circumstances. There was a direct conflict for each mule, and waives damages from in the evidence whether appellees had been overloading, crowding, kicking, goring, suf- so informed; and also there was evidence focating, fright, etc., and provides for trans- from which the jury might have inferred portation of man or men in charge, assump- that appellant's agent was not authorized to tion by them of all risk of accident to their receive any shipment under an unlimited persons and property, and that care, feed liability.

liability. The agent of appellant who reing, and watering the stock should be at the ceived the mules and entered into the conrisk and expense of the shipper, without any tract first testified that appellant used but liability or duty with reference thereto, ex- one form of limited contract for stock, and cept in the actual transportation. But the that appellant would ship under an unlimit28-hour act is for the prevention of cruelty ed contract, if desired by a shipper, but if to animals, and not primarily for the benefit appellees had declined to ship under the conof the owners, but restrictive of their rights, tract, which was the one in general use and cannot be waived, except in the man- by him at that station for 17 years, the rate ner and upon the contingencies provided in would have been 20 per cent. higher, and the act. B. & O., etc., Co. v. United States, the same form of contract would have been 220 U. S. 94, 31 Sup. Ct. 368, 55 L. Ed. 384. used, and the contract required would have There were 75 mules shipped, and the judg- made the shipment at the consignee's risk, ment was for $1,000, and the motion for a dy an indorsement upon the contract. If new trial raises no question as to the the latter statement be correct, then the

, amount of the damages.

agent was not authorized to ship under the [10, 11] Appellees were bound to know that common-law liability, and there was no nethere could be two rates. Besides, the fact cessity for a demand, which would have is specially pleaded that appellees were offer- been unavailing, and the contract was ined a lesser rate in consideration of limitation valid. Cleveland, etc., Co. v. Hollowell, 172

, of liability, and the defense is predicated Ind. 466, 88 N. E. 680. upon failure to file the claim within the Here the evidence objected to followed time limited by the contract, and that the the evidence by the agent, and was in some damage occurred from overloading, crowding, sense supportive, as was other evidence, of kicking, suffocating, and fright, and that ap- the theory that there was no opportunity pellant did not undertake to carry beyond to ship without limitation of liability, though the terminus of its own line at Cincinnati. the evidence of plaintiffs was that they did Appellees were bound to know that in mak- not know of more than one kind of contract. ing, and appellant in undertaking, a through But if the contract was out of the case by shipment there could be at least two rates, reason of lack of authority in the agent to and that through shipment could not oth- ship without limitation the evidence was erwise be undertaken, and that shipment harmless to appellant, and if the contract could be required under either, and it was was in the case the evidence was not inadnot necessary that the rates be posted. It missible on its face under the circumstances, is sufficient that they have been filed with and if there were specific grounds of objecthe Interstate Commerce Commission, ap- tion to it they are not disclosed in the briefs. proved, and published; and it is presumed Other causes for a new trial are urged, but from an interstate shipment being under the grounds of the objections to the questaken, either that the shipment is made tions are nowhere stated, and no question is upon an agreed joint through rate, or the presented as to them. sum of the local rates, either with or with- No error is made to appear, and the judg. out limitation of liability. Wabash Co. v. ment must be affirmed; and it is so ordered.


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(55 Ind. App. 283)

will necessitate his removal, especially where WHEATCRAFT v. WHEATCRAFT et al.

the trust fund is in no danger of being lost (No. 8,008.) 1

on account of such breach of duty.

[Ed. Note.-For other cases, see Trusts, Cent. (Appellate Court of Indiana, Division No. 1. Dig. & 217, 218; Dec. Dig. § 166.*] June 6, 1913.)



The use of the trust estate by the trustee Where trust property is located in Marion for his own benefit or any neglect or mismancounty and the trust deed is there recorded, agement which impairs or jeopardizes such esthe court of that county has jurisdiction of tate will furnish sufficient ground for removal. a suit to remove the trustee; no judgment be- [Ed. Note.-For other cases, see Trusts, Cent. ing asked against the trustee in personam. Dig. $8 217, 218; Dec. Dig. § 166.*] [Ed. Note.-For other cases, see Trusts, Cent.

Appeal from Circuit Court, Marion CounDig. $8 219, 220; Dec. Dig. § 167.*]

ty; Charles Remster, Judge. 2. PARTIES ($ 88*)-JOINT CAUSE OF ACTION

Petition by Fannie E. Wheatcraft and an-DEMURRER.

A complaint in which more than one plain- other against Harvey H. Wheatcraft. From tiff joins must state a cause of action in favor a judgment for plaintiffs, defendant appeals. of all the parties joining therein to make it | Affirmed. sufficient against a demurrer for want of facts. [Ed. Note.-For other cases, see Parties, Cent.

J. F. Crawford and E. A, McAlpin, both of Dig. 88 145–147; Dec. Dig.' 8 88.*]

Greenwood, for appellant. L. Ert. Slack, of 3. DEEDS ($ 105*) - CONSTRUCTION - "CHIL- Franklin, for appellees. )


In view of Burns' Ann. St. 1908, § 2998, HOTTEL, P. J. On the 10th day of providing that illegitimate children shall inherit March, 1904, Eliza J. McAlpin, then the ownfrom the mother as if they were legitimate er in fee simple of four separate tracts of daughter and on her death to her children, real estate aggregating about 81 acres sitis made when the child had an illegitimate child uated in Marion county, Ind., conveyed and living, it will be presumed that the word quitclaimed it to the appellant, Harvey "children,” as used in the deed was meant to Wheatcraft, of Johnson county, Ind., as truscover illegitimate children.

[Ed. Note. For other cases, see Deeds, Cent. | tee. Dig. 88 278-291, 372–374; Dec. Dig. 105.* The provisions of the trust created by such

For other definitions, see Words and Phrases, deed are as follows: "This indenture witvol. 2, pp. 1115-1141; vol. 8, p. 7601.]

nesseth: That Henry Alexander McAlpin 4. DEEDS ($ 133*)-VESTING OF REMAINDERS. and Eliza J. McAlpin, his wife, of Marion

The law favors the vesting of remainders county, and state of Indiana, convey and at the earliest possible moment.

[Ed. Note.-For other cases, see Deeds, Cent. quitclaim to Harvey H. Wheatcraft, of JohnDig. $$ 368–371; Dec. Dig.' $ 133.*]

son county and state of Indiana, as trustee, 5. TRUSTS (8 167*)—REMOVAL OF TRUSTEE- for the sum of one dollar, the following real INTEREST OF PARTIES.

estate, in Marion county, Indiana, to wit: Where a trust deed provides that the [Here follows description.] Said Harvey H. property shall be held for the life of grantor's Wheatcraft is to have and to hold said real daughter and on her death to her daughter; estate, however, in trust for the following the daughter had such an interest under Burns' Ann. St. 1908, § 263, providing that purposes, to wit: Said trustee is to manage all persons having an interest in the subject and control said real estate for and during of the action, and obtaining the relief sought, the natural life of Fannie E. Wheatcraft, shall be joined as plaintiffs, so as to entitle her daughter of said Eliza' J. McAlpin, and is to

a the trustee.

account to and to pay over to said Fannie [Ed. Note. For other cases, see Trusts, Cent. E. Wheatcraft during her natural life the Dig. 88 219, 220; Dec. Dig. 8 167.*]

net rents and profits of said real estate an. 6. TRUSTS (8 166*) - REMOVAL OF TRUSTEE —nually, said trustee to keep said property in

$ JOINT PETITIONERS-DEMURRER. Where, under a deed of trust, both the good repair and to pay all taxes and other

liens thereon. At the death of said Fannie life tenant and the remainderman join in a petition to remove the trustee, no further relief E. Wheatcraft, said trust is to terminate and being asked, any ground of removal injuriously said real estate is to go to the child or affecting the life tenant only will inure to the children of said Fannie E. Wheatcraft then remainderman in view of Burns' Ann. St. 1908, $ 4023, providing that trustee having violated living and to the descendants of such as are or attempted to violate, any express trust, or dead; the descendants of any deceased child for any other cause, in the discretion of the taking the same interest the parent would court having jurisdiction, may on petition of have taken if alive. This conveyance is any person interested be removed by such court; hence a demurrer to the petition, be made subject to a life estate in and to the cause not showing that the remainderman was above-described real estate in the said Eliza affected, is properly overruled.

J. McAlpin, which is hereby reseryed from [Ed. Note. For other cases, see Trusts, Cent. this conveyance, and she is to have the posDig. $8 217, 218; Dec. Dig. & 166.*]

session and control thereof during her nat7. TRUSTS (8 166*) — REMOVAL OF TRUSTEE

ural life. The said child or children above GROUNDS.

It is not every violation of duty or mis- mentioned to take as purchasers under this management on the part of the trustee that I deed."

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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