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property could be required to be received for through shipment, until the rate had been established. See, also, Southern, etc., Co. v. Burlington Co. (1912) 225 U. S. 99, 32 Sup. Ct. 657, 56 L. Ed. 1001.



initial carrier, to pay to the appellees the
judgment rendered in their favor, though the
damage to the property was done by a con-
necting carrier, and in so doing necessarily
takes from appellant all money necessarily
expended by it in paying costs made by it,
and in employing counsel to defend it against
the suit brought by the appellees against it.
(9) Because it assumes to make the appel-*
lant, as the initial carrier, responsible for
loss to property while the same was in the
possession of a connecting carrier, or under
its control. If the property passes over the
lines of two or more connecting carriers, the
initial carrier has no means of knowing which
carrier injured the property, and will be
compelled to engage in expensive litigation
to ascertain, according to the provisions of
this act, which one is liable. And if it is
found in such litigation that the injury
for which the initial carrier must respond
was occasioned by two or more connecting
carriers, the provisions of the act, which pro-
vide that the initial carrier shall recover
from the connecting carrier the amount of
the judgment obtained against the initial car-
rier, are necessarily futile, and furnish no re-
lief to the innocent initial carrier.

It may be conceded that those propositions are forcibly put and challenge the validity of the act, so that the question resolves itself into one of the power of Congress.


[2] The sections of the Interstate Commerce Act which are involved in the question are 6, 15, and 20, U. S. Comp. Stat. 1911, pp. 1291, 1299, 1307. Section 6 of the act requires that each common carrier shall file with the Interstate Commerce Commission and print and keep open to public inspection "schedules showing all the rates, fares, and charges for transportation between different points on its own route and points on the route of any other carrier when a through route and joint rate has been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print and keep open to public inspection the separately established rates, fares and charges applied to the through transportation. The names of the several carriers which are parties to any joint tariff * * specified therein, and each of the parties thereto, other than the one filing the same, shall file with the commission evidence of concurrence therein or acceptance, thereof, etc. No carrier, unless otherwise provided in this act, shall engage or participate in the transportation of passengers unless the or property, rates, fares, and charges upon which the same are transported have been filed * * in accordance with the provisions of this act."





* * *

In Southern Railway Co. v. Reid (1911) 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257, it was held, under this latter clause, that no

By the provisions of section 15 of the act, all cases where at the time of delivery property transportation


* *

* *




to any point of destination, between which and the point of such delivery for shipment two or more through routes and through rates shall have been established, *** the person making such shipment shall have the right to designate in writing by which of such through routes such property shall be transported, and it shall thereupon be the duty of the initial carrier to route said property and issue a through bill of lading therefor as so directed, and to transport said property over its own line or lines and deliver the same to a connecting line or lines according to such through route, and it shall be the duty of each of said connecting carriers to receive said property and transport it over the said line or lines and deliver the same to the next succeeding carrier or consignee according to the routing instructions in said bill of lading: Provided, however, that the shipper shall in all instances have the right to determine, where competing lines of railroad constitute portions of a through line or route, over which of said competing lines so constituting a portion of said through line or route his freight shall be transported.' Under this clause as we construe it, in the light of Southern Railway Co. v. Reid, supra, as to the clause there under review, as there can be no through shipment lawfully undertaken, unless a rate has been established, filed, and published, there can be no through shipment undertaken, even where there are two or more competing lines in some portion of the route, unless there is a rate fixed over each, so that the shipper in routing it by one or the other is as fully informed as is the carrier, when the shipment is made, as to the rate, and as the rate in such case must be made by agreement between the carriers, the carrier necessarily chooses his agent in advance, and is in no situation to deny that agency. If a through rate has not been fixed, then the shipper in exercising his common-law right of routing cannot make a through shipment, but must make shipment according to the local rates of the respective lines over which the carriage may be undertaken. The right of routing, therefore, cannot affect the contractual rights of the carrier; for if it has not contracted with a connecting carrier it cannot be required to accept for through carriage, and if it does accept for through carriage it does so under contract with the connecting carrier. So the right of through routing is purely contractual on the part of the carrier, except as under the act 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 assume that all such matters were the subject of contract between them, if it was necessary that it be so, in order to protect the one against the other; but aside from the question of contract, if one company delivers in good condition, then upon notice to defend, or by vouching in the carrier or carriers responsible for the loss, or each in turn vouching in its successor in carriage, the expense is transferred to the party responsible for the loss, and at one and the same time fixes the amount of the loss and the party responsible for it.

[5] Nor is there any ground for the position taken that the carrier is made responsi

[3] The case before us being one of through shipment, appellant cannot be heard to raise a moot question of constitutionality, as applied to a case of routing by the shipper, where it is not a through shipment, but under the local rates of each connecting carrier. In other words, where a through shipment is undertaken, it can only be under a contract as to the rates, so that each succeeding carrier becomes the agent of the initial carrier, and liability is grounded on that agency and contract. So when we come to the primary liability clause of section 20 it is based upon the presumed fact, and the law, that a contract has been made between the carriers, because carriage cannot other-ble for the act of God or the public enemy, wise be undertaken; and it will be presumed that such agreement has been made, and the question of liability under those conditions has been determined adversely to appellant's contention on the ground of agency. Galveston, etc., Co. v. Wallace, 223 U. S. 481; 32 Sup. Ct. 205, 56 L. Ed. 516; Atlantic, etc., Co. v Riverside Mills (1911) 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7; Pittsburgh, etc., Co. v. Mitchell (1910) 175 Ind. 196, 211, 91 N. E. 735, 93 N. E. 996; Interstate Commerce Com'n v. Louisville, etc., Co. (C. C. 1902) 118 Fed. 613; United States v. Seaboard, etc., Co. (C. C. 1897) 82 Fed. 563.

And that the primary liability clause does not offend the due process of law clause of the Constitution is settled. Pittsburgh, etc., Co. v. Mitchell, supra; Riverside Mills v. Atlantic, etc., Co. (C. C.) 168 Fed. 987; Smeltzer v. St. Louis, etc., Co. (C. C. 1908) 158 Fed. 649; Galveston, etc., Co. v. Crow (Tex. Civ. App. 1909) 117 S. W. 170; Galveston, etc., Co. v. Piper (1908) 52 Tex. Civ. App. 568, 115 S. W. 107. The questions of due process of law, taking private property, and forcing an insolvent intermediate carrier upon the initial carrier, and making a new contract for the initial carrier, are all removed by the fact of it having itself made the contract as a condition of carriage at all. Upon those questions see Galveston, etc., Co. v. Johnson (Tex. Civ. App. 1911) 133 S. W. 725; St. Louis, etc., Co. v. Heyser (1910) 95 Ark. 412, 130 S. W. 562, Ann. Cas. 1912A, 610; Missouri, etc., Co. v. Harriman (Tex. Civ. App. 1910) 128 S. W. 932; Louisville, etc., Co. v. Scott (1909) 133 Ky. 724, 118 S. W. 990, 19 Ann. Cas. 392.

or for the negligence of another, because by vouching 'in, or notice, responsibility is fixed where it belongs, and nonliability from the act of God or the public enemy is a defense to any carrier; and as to negligence the carrier responsible for the loss is the party which must respond.

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Objection is made to instructions Nos. 6, 7, 8, and 9 upon the same grounds; that is, that the carrier had a right to limit its common-law liability, and therefore to limit the time within which claims for loss should be filed, and the instructions requested and refused travel upon the theory, first, that as the shipper voluntarily decided to ship at a reduced rate and a limited liability, and it was so recited in the contract of shipment, the recital was evidence of a consideration for the contract and of its reasonableness, and that it was fairly entered into, and hence the agreement to file any claim for loss within five days from the time of unloading must be complied with; second, that if the shipper shipped under a limited liability contract, in consideration of a less rate, and that he could have shipped without limitation of liability at a reasonable rate, and the carrier had publicly given notice to that effect, and he signed the contract without objection, that as a matter of law he was given a bona fide and full opportunity to ship, and the verdict should be for defendant on the issue of a bona fide opportunity to ship at a fair and reasonable rate without limitation of liability.

Instruction No. 6, requested by appellant, instructs that if under the provision of the written contract of shipment, reciting that the shipper had the option of shipping at

applicable to the carriage, and thereby securing the liability for the stock, and had voluntarily decided to ship at the lower rate, then such contract furnished evidence of being based upon a sufficient consideration, and was fairly entered into after a bona fide and full opportunity to ship at a reasonable rate without limitation of liability, and should be considered as establishing those facts, and if the claim was not made, as provided in the contract, within five days from delivery there could be no recovery.

The seventh requested instruction is to the effect that if, under the contract in evidence, appellee received the lesser of two rates in consideration of limitation of liability, it must be deemed to have been upon a sufficient consideration, and upon the question of the consideration being sufficient the jury should find for the defendant.

The eighth requested instruction was to the point that the provision of the contract of shipment that verified claim for shipment should be made within five days of delivery of the mules was a reasonable provision, and upon this allegation the jury should find for defendant.

The ninth requested instruction was to the effect that if the jury found that appellant would have shipped without limitation and charged more therefor, and appellant had for a long time been and was shipping, and would have shipped, either with or without limitation, as the shipper desired, and had given notice to that effect, and that the rate for unlimited liability was fair and reasonable, and the contract was executed without objection, that the contract was executed after appellee had been given a bona fide and fair opportunity to ship at a fair and reasonable rate without limitation, and on this allegation of the answer the jury must find for the defendant. The instruction further directs the jury that in determining the rate that would have been charged without limitation of liability they might take into consideration the legal obligation of carriers under unlimited contracts, describing some of them, and the advantages and disadvantages to the parties under an unlimited and a limited liability, considered with respect to the obligations of the carrier on the one hand, and the added cost of carriage on the other.

[6] Standing alone, these instructions were each undoubtedly correct upon the facts stated, under the rule as declared in the Priddy Case; but in the absence of the evidence being set out, so that we might determine their applicability, we are bound to assume that they were not applicable, and that the sixth and seventh instructions given by the court on its own motion, and the ninth given at appellant's request, fully covered and were applicable to the facts, for the reason that the two instructions given cover all the points in the sixth, seventh, eighth, and ninth requested instructions, except that the

conclusive evidence of being entered into upon a sufficient consideration after a fair and bona fide opportunity to ship at a reasonable rate without limitation, and add as to the question of filing the claim that if the claim was not filed within five days from removal from the car plaintiff could not recover, and if the opportunity to inspect, when removed from the car, was prevented by the fault of the shipper, and not by the fault of the defendant, then the five-day period for presenting the claim would begin to run from the time the mules were removed from the car. Appellant cannot complain of these instructions as failing to cover the ground of its requested instructions, and we must assume they were applicable to the evidence.

[7] Objection is also raised as to the failure to give instruction No. 5, requested by appellant, and in giving Nos. 6 and 8, given at appellees' request. Instruction 5 went to the question of nonliability for failure to file claim for damages within five days without any exception, and was too broad. The question was properly presented under the court's instructions 6 and 7, and appellees' requested and given instruction 9, in which it is pointed out that, if the opportunity to inspect the mules when they were removed from the car was refused by the carrier, then the five-day period of filing claim would not begin to run when the mules were unloaded.

[8] Instruction No. 6 was directed to the question of the contract being fully and fairly entered upon good consideration, and the time fixed for filing claim reasonable, and instruction No. 8 to the question of negligence in watering, resting, and feeding, based upon the Interstate Commerce Act of June 29, 1906. The instructions cover the questions as to the proper elements of evidence to be considered in determining those questions.

The specific objection is that what is a reasonable time is a question for the jury. The proposition is correct, but it is unavailable here for two reasons: First. Because appellant had requested an instruction that the time fixed in the contract was reasonable, and under that request, while the court did not give that instruction as requested, it did give an instruction to the precise point, and then gave an instruction covering the question of reasonableness of time, in view of the claim of appellees of being prevented from inspecting the mules when unloaded, and also gave instruction No. 6 upon the question of what might properly be considered by the jury, as shown by the evidence, in determining that question, and no complaint is made of the elements stated. Instruction No. 8 goes to the question of the evidence proper to be considered by the jury in determining whether the animals had been 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., 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 Sup. Ct. 358, 52 L. Ed. 562.

Appellant was not, therefore, bound to inform appellees of the existence of the two rates, and evidence admitted over objection of appellant as to appellees not being so informed was improper, unless under no circumstances could it have been proper; oth

Objection is raised as to some items of evidence claimed to have been properly admitted over objection and set out in the motion for a new trial, but no such evidence is set out in the recital of the evidence, or even referred to. The only question which could by any possibility be presented is one under which it might be claimed that, stand-erwise the grounds of the objection should ing alone, a question was improper which sought to learn whether the shipper had been notified of there being more than one rate with differing liabilities.

[9] The contract limits liability to $100 for each mule, and waives damages from overloading, crowding, kicking, goring, suffocating, fright, etc., and provides for transportation of man or men in charge, assumption by them of all risk of accident to their persons and property, and that care, feeding, and watering the stock should be at the risk and expense of the shipper, without any liability or duty with reference thereto, except in the actual transportation. But the 28-hour act is for the prevention of cruelty to animals, and not primarily for the benefit of the owners, but restrictive of their rights, and cannot be waived, except in the manner and upon the contingencies provided in the act. B. & O., etc., Co. v. United States, 220 U. S. 94, 31 Sup. Ct. 368, 55 L. Ed. 384. There were 75 mules shipped, and the judgment was for $1,000, and the motion for a new trial raises no question as to the to the amount of the damages.

[10, 11] Appellees were bound to know that there could be two rates. Besides, the fact is specially pleaded that appellees were offered a lesser rate in consideration of limitation of liability, and the defense is predicated upon failure to file the claim within the time limited by the contract, and that the damage occurred from overloading, crowding, kicking, suffocating, and fright, and that appellant did not undertake to carry beyond the terminus of its own line at Cincinnati. Appellees were bound to know that in making, and appellant in undertaking, a through shipment there could be at least two rates, and that through shipment could not otherwise be undertaken, and that shipment could be required under either, and it was not necessary that the rates be posted. is sufficient that they have been filed with the Interstate Commerce Commission, approved, and published; and it is presumed from an interstate shipment being undertaken, either that the shipment is made upon an agreed joint through rate, or the sum of the local rates, either with or without limitation of liability. Wabash Co. v.


have been stated in order to raise any question here, which is not shown to have been done, though the rule is different where the question on its face is improper under any circumstances. There was a direct conflict in the evidence whether appellees had been so informed; and also there was evidence from which the jury might have inferred that appellant's agent was not authorized to receive any shipment under an unlimited liability. liability. The agent of appellant who received the mules and entered into the contract first testified that appellant used but one form of limited contract for stock, and that appellant would ship under an unlimited contract, if desired by a shipper, but if appellees had declined to ship under the contract, which was the one in general use by him at that station for 17 years, the rate would have been 20 per cent. higher, and the same form of contract would have been used, and the contract required would have made the shipment at the consignee's risk, by an indorsement upon the contract. If the latter statement be correct, then the agent was not authorized to ship under the common-law liability, and there was no necessity for a demand, which would have been unavailing, and the contract was invalid. Cleveland, etc., Co. v. Hollowell, 172 Ind. 466, 88 N. E. 680.

Here the evidence objected to followed the evidence by the agent, and was in some sense supportive, as was other evidence, of the theory that there was no opportunity to ship without limitation of liability, though the evidence of plaintiffs was that they did not know of more than one kind of contract. But if the contract was out of the case by reason of lack of authority in the agent to ship without limitation the evidence was harmless to appellant, and if the contract was in the case the evidence was not inadmissible on its face under the circumstances, and if there were specific grounds of objection to it they are not disclosed in the briefs.

Other causes for a new trial are urged, but the grounds of the objections to the questions are nowhere stated, and no question is presented as to them.

No error is made to appear, and the judgment must be affirmed; and it is so ordered.

(55 Ind. App. 283)


(No. 8,008.) 1

will necessitate his removal, especially where the trust fund is in no danger of being lost 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.)

1. TRUSTS (§ 167*) REMOVAL OF TRUSTEE JURISDICTION OF COURT. Where trust property is located in Marion county and the trust deed is there recorded, the court of that county has jurisdiction of a suit to remove the trustee; no judgment being asked against the trustee in personam.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 219, 220; Dec. Dig. § 167.*] 2. PARTIES (§ 88*)-JOINT CAUSE OF ACTION -DEMURRER.

A complaint in which more than one plaintiff joins must state a cause of action in favor of all the parties joining therein to make it sufficient against a demurrer for want of facts. [Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 145-147; Dec. Dig. § 88.*] 3. DEEDS (§ 105*) - CONSTRUCTION "CHILDREN”—ILLEGITIMATE CHILDREN.

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In view of Burns' Ann. St. 1908, § 2998, providing that illegitimate children shall inherit from the mother as if they were legitimate where a deed in trust to hold for grantor's daughter and on her death to her children, is made when the child had an illegitimate child living, it will be presumed that the word "children," as used in the deed was meant to cover illegitimate children.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 278-291, 372-374; Dec. Dig. § 105.* For other definitions, see Words and Phrases, vol. 2, pp. 1115-1141; vol. 8, p. 7601.] 4. DEEDS (§ 133*)-VESTING OF REMAINDERS. The law favors the vesting of remainders at the earliest possible moment. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 368-371; Dec. Dig. § 133.*] 5. TRUSTS (§ 167*)-REMOVAL OF TRUSTEE


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The use of the trust estate by the trustee for his own benefit or any neglect or mismanagement which impairs or jeopardizes such estate will furnish sufficient ground for removal. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 217, 218; Dec. Dig. § 166.*]

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Petition by Fannie E. Wheatcraft and another against Harvey H. Wheatcraft. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. F. Crawford and E. A. McAlpin, both of Greenwood, for appellant. L. Ert. Slack, of Franklin, for appellees.

HOTTEL, P. J. On the 10th day of March, 1904, Eliza J. McAlpin, then the owner in fee simple of four separate tracts of real estate aggregating about 81 acres situated in Marion county, Ind., conveyed and quitclaimed it to the appellant, Harvey wheatcraft, of Johnson county, Ind., as trustee.

The provisions of the trust created by such deed are as follows: "This indenture witnesseth: That Henry Alexander McAlpin and Eliza J. McAlpin, his wife, of Marion county, and state of Indiana, convey and quitclaim to Harvey H. Wheatcraft, of Johnson county and state of Indiana, as trustee, for the sum of one dollar, the following real estate, in Marion county, Indiana, to wit: [Here follows description.] Said Harvey H. Wheatcraft is to have and to hold said real estate, however, in trust for the following purposes, to wit: Said trustee is to manage and control said real estate for and during the natural life of Fannie E. Wheatcraft, daughter of said Eliza J. McAlpin, and is to 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. §§ 219, 220; Dec. Dig. § 167.*]


Where, under a deed of trust, both the life tenant and the remainderman join in a petition to remove the trustee, no further relief being asked, any ground of removal injuriously affecting the life tenant only will inure to the remainderman in view of Burns' Ann. St. 1908, § 4023, providing that trustee having violated, or attempted to violate, any express trust, or for any other cause, in the discretion of the court having jurisdiction, may on petition of any person interested be removed by such court; hence a demurrer to the petition, because not showing that the remainderman was affected, is properly overruled.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 217, 218; Dec. Dig. § 166.*]


It is not every violation of duty or mismanagement on the part of the trustee that

net rents and profits of said real estate annually, said trustee to keep said property in good repair and to pay all taxes and other

liens thereon.

At the death of said Fannie

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E. Wheatcraft, said trust is to terminate and said real estate is to go to the child or children of said Fannie E. Wheatcraft then living and to the descendants of such as are dead; the descendants of any deceased child taking the same interest the parent would have taken if alive. This conveyance is made subject to a life estate in and to the above-described real estate in the said Eliza J. McAlpin, which is hereby reserved from this conveyance, and she is to have the possession and control thereof during her natural life. The said child or children above mentioned to take as purchasers under this deed."

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

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