were crippled and others dead and missing; that owing to the negligence of appellant in so confining said sheep for the time aforesaid, they deteriorated in value $380; that the value of sheep not delivered was $56; that the sheep that died on account of the neglect aforesaid were of the value of $45, and the loss in the sheep crippled amounted to $25 for all of which appellee demanded damages in the sum of $700.

The memoranda accompanying the demurrer to the complaint states, in substance: (1) That neither paragraph sets out a copy of the bill of lading or contract covering the shipment, and the averments show it was an interstate shipment, and governed by the federal law, and not by the laws of the state of Indiana, and therefore insufficient without a copy of such bill of lading or contract; (2) that the allegations fail to show that appellee made due application for cars, as required by the statute; that it is not shown that appellant failed or refused to issue a receipt or bill of lading for the sheep, or that appellee made demand for such receipt or bill of lading.

[1, 2] Appellant urges the proposition that each paragraph shows the shipment was interstate and governed by the Carmack Amendment to the Hepburn Act, which requires the issuance of a receipt or bill of lading by the carrier, the issuance of which cannot be waived; that the liability, if any, is based upon a breach of the contract evidenced by such receipt or bill of lading, without which the complaint is insufficient, unless it appears that demand was made for such receipt or bill of lading by the shipper and refused by the company. The complaint does not purport to state a cause of action under the statute, though it does appear in each paragraph that the shipment was interstate. It has been held that there may be a cause of action for damages, under the common law, against a common carrier for its negligence or wrongful acts resulting in damages or loss to the shipper of an interstate shipment, notwithstanding the federal statute governing such shipment. According to the averments appellant accepted the live stock for shipment, and failed to issue any receipt or bill of lading therefor to the shipper. United States Statutes at Large (vol. 34, p. 595 [U. S. Comp. St. 1913, § 8592]) provides:

"That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law."

The statute clearly imposed on the carrier the duty of issuing the receipt or bill of lading, and it cannot shield itself from liability by a failure to discharge a statutory duty. Each paragraph states a cause of action under the common law. Toledo, etc., R. Co. v. Milner, 110 N. E. 756, and cases cited.

[3] The assignment that the court erred in overruling appellant's motion for judgment on the answers of the jury to the interrogatories is waived by failure to present any point or proposition relating thereto in appellant's briefs.

[4-6] The second paragraph of answer to each paragraph of complaint admits the shipment by appellant of the sheep from Medford, Ind., as alleged, but avers that it then had two rates for the shipment of such live stock, one of which applied when shipments

were made under its uniform live stock contract, and the other a higher rate used when shipments were made without such contract, whereby the shipper became subject to the liability imposed by the common law and the federal and state statutes applicable thereto; that at the time of the shipment aforesaid these rates were evidenced by appellant's rate sheets, or tariffs, filed with the Interstate Commerce Commission and published according to law; that appellee was entitled to ship at either of said rates, and then and there did ship, at the lower rate, in compliance with the conditions of appellant's Uniform Live Stock Contract, or at 13 cents per hundredweight for 42,000 pounds, amounting to $54.60; that appellant, on January 16, 1912, the day of the shipment, was ready and willing to issue such Uniform Live Stock contracts, but appellee failed to call for them at the freight office in the city of Muncie, Ind., at which office he made his request for cars, and did not call therefor until March 15, 1912, when appellant's agent issued to him three of such contracts, one for each carload of stock shipped, which he then signed under the name and style of Web Jordan, copies of which contracts are made parts of the answer, and dated January 16, 1912; that prior thereto there had been a long course of dealings between the two parties as carrier and shipper of live stock, and all of appellee's shipments were made at the lower freight rate and subject to the terms and conditions of the aforesaid contracts, which were well known to appellee; that it had been the custom and practice of appellee to call at the freight office at Muncie, Ind., after the shipment of live stock and procure said contracts; that he lived six miles from Muncie, and appellant for a long time prior to January 16, 1912, had permitted him to ship without such contracts or any receipt or bill of lading and to procure the contract afterwards as an accommodation to him; that appellee accepted the aforesaid contracts, which provide that in case of unusual delays

"caused by the negligence of the said carrier or its employés or its connecting carrier, or their employés or otherwise, the shipper agrees to accept as full compensation for all loss or damage sustained thereby the amount actually expended by said shipper in the purchase of food and water for the said stock while so detained."

that appellee did not undertake to feed, water, or care for the sheep, or look after the cars during the time of the aforesaid shipment, nor did he at any time agree to relieve appellant from liability for its negligence, or the negligence of its employés or connecting lines, nor from liability for any of the causes or reasons alleged and based on said contracts, so issued after the shipments were made as aforesaid.

Also that no claim for damages shall be allowed or paid unless a verified claim therefor shall be made in writing and be delivered to the general claim agent of the carrier at his office in Richmond, Va., within five While the sufficiency of the affirmative days from the time the stock is removed paragraphs of reply to the second paragraph from the cars; that the shipper shall see that of answer is not presented by appellant's all doors and openings in the cars are kept briefs, and questions relating thereto are closed so as to prevent the escape of any of thereby waived, nevertheless we have deemthe live stock, and the carrier shall not be ed it necessary to state the substance of liable for the escape of any of the stock so those pleadings as a means of comprehendshipped, or for loss from overloading, crowd- ing and deciding the questions presented uning, kicking, goring, suffocating, fright, order the assignment that the court erred in from fire, heat, cold, or changes of weather; overruling appellant's motion for a new that appellee failed to so make and present his claim within five days for any of the damages he now seeks to recover in this action, by reason whereof appellant is not liable for any of the sheep that were missing or for any of the damages alleged.

trial.

Notwithstanding the federal statute, common carriers may make contracts whereby they limit and define the extent of liability against them under specified conditions, but they cannot, by contract, relieve themselves from liability for damages caused by their negligence or the negligence of their employés. Wabash Ry. Co. v. Priddy, 179 Ind. 492-494, 101 N. E. 724; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257.

The first proposition urged under this assignment is that the verdict of the jury is not sustained by sufficient evidence, for the reason the complaint proceeds on the theory of a common-law liability for violation of a To this answer, a reply of general denial parol contract of shipment and the uncontrawas filed, and a special reply, in which it dicted evidence shows the shipment was was alleged that the contracts relied upon made under the written contract set out in were executed without any consideration. | appellant's special answer. Many of the Also a paragraph which alleges, in detail, general propositions advanced in support of all the facts of the shipment and the sub- this contention are beyond dispute, and need sequent transactions, and, among other not be discussed because they are supported things, alleges that appellee was ready and by authority. Walker v. Larkin, 127 Ind. willing to pay, and did pay, the full and rea- | 100, 26 N. E. 684; Snow v. I. B. & W. Ry. sonable freight charges demanded by appel- Co., 109 Ind. 422-426, 9 N. E. 702; Stewart lant for such shipment, and no option was v. C., C., C. & St. L. Ry. Co., 21 Ind. App. given him of shipping at a higher rate, and 218-226, 52 N. E. 89; C., C., C. & St. L. Ry. v. he had nothing to do with fixing the rate of Hollowell, 172 Ind. 466-469, 88 N. E. 680. freight charged by appellant, and did not, at any time, agree to ship at a lower rate and limit appellant's liability in any respect whatever; that appellant did not, on January 16, 1916, when said sheep were shipped, issue to appellee any receipt or bill of lading therefor; that on March 15, 1912, appellee demanded of appellant a receipt or bill of lading for the live stock so shipped, and appellant failed and refused to issue the same and did not do so, but instead thereof is sued the aforesaid contracts, and refused to issue any other receipt or bill of lading for said shipments, and then procured appellee's signature thereto, all without any consideration therefor; that appellee did not accompany the sheep to Chicago, nor did any one in his behalf, and appellant at the time knew that such was the case, and then and there undertook to take care of the sheep during transportation, and it was the duty of appellant to care for, feed, and water the sheep; that the provisions of said contracts relied on are in extremely fine print, were not read by, or known to, appellee at the time, and his attention was not called there to by appellant or its agents; that said provisions were and are illegal, unreasonable, against public policy, fraudulent, and void;

Reference is made to the act of 1905 (section 3918 et seq., Burns 1914), relating to the practice in suits against common carriers of freight for damages resulting from failure to safely transport property delivered to such carriers for shipment. This act has been held to be valid and constitutional. C., C., C. & St. L. Ry. Co. v. Blind, 182 Ind. 398419, 105 N. E. 483. But the case at bar does not depend upon the provisions. Where the shipments are interstate, the state law is superseded by the federal statute on the subject as to all questions of liability or defenses covered by the statute and applicable to any given case, but this does not interfere with the jurisdiction of the state courts, for the federal law is a part of the law of the state, and in suits of the character here in

volved the state courts may apply such law | The general verdict is a finding in appellee's and give the relief warranted by the law and the facts. As already shown, the complaint counts on a common-law liability.

[7-10] The special answer sets up facts There is testimony tending to show that apto show that the shipment was not only in- pellee ordered the cars from appellant's terstate, but that the nature and extent of freight agent by telephone and that the appellant's liability was fixed by a special agent agreed to furnish them; that when contract duly entered into and binding on the sheep were loaded on January 16th, apboth the carrier and shipper. The answer pellee reported to the agent over the teleshows that the contract was not actually ex-phone the cars and number of sheep in each ecuted until about two months had expired after the shipment was made. To connect the contract with the shipment the answer avers an established custom between the parties by which shipments were made with out any receipt, bill of lading, or contract, in writing, being delivered to the shipper, and whereby, subsequent to such shipments, appellee executed and accepted contracts identical with those under which it is alleged the shipments were made.

On the whole record a correct result seems to have been reached, and we find no intervening error that will warrant a reversal. Judgment affirmed.

(63 Ind. App. 323)

VANDALIA COAL CO. v. RINGO (No. 9178.)

15, 1912; that there was no written or print- | tracts, the general verdict is a finding that ed instrument in existence which contained appellee was given no choice, and was comthe exact terms of the agreement under pelled to ship under the provisions of the which the sheep of appellee were shipped to contracts, or not at all, in which event apChicago; that no part of the damages al- pellant would be liable for the damages unlowed appellee were for delay in furnishing der the common law. Toledo, etc., Ry. Co. cars at Medford, Ind. On this state of the v. Milner, supra. record the finding of the jury may be sustained on the theory that the special answer was not established because of the failure to prove the alleged custom, and likewise that the special contracts relied upon by appellant were executed without consideration, and therefore not binding on appellee. The answers to the interrogatories show that such was the theory upon which the jury found its verdict, and that nothing was allowed for delay in furnishing cars before the shipment was actually made, as alleged in the first and second paragraphs of complaint, and therefore that the judgment rests upon the third paragraph of the complaint for damages due appellant's negligence in failing to care for and make timely delivery of the sheep at Chicago. Furthermore, it is the rule of law in this state that if a bill of lading is not furnished the shipper until after the goods are fully accepted by the carrier under an oral agreement, the bill of lading constitutes no part of the contract, and the oral agreement controls. C. F. Adams Co. v. Helman, 58 Ind. App. 394, 106 N. E. 733, and cases cited.

[11] The findings and conclusions already announced make it unnecessary for us to consider in detail several questions suggested by appellant relating to the instructions, the alleged failure of the jury to fully and fairly answer certain interrogatories, the admission of certain evidence and certain questions relating to shipping rates, for the reason that appellee could not have been harmed by any ruling of the court so complained of, unless it appears that the jury might have arrived at its verdict on the theory that the shipments were made in pursuance of the provisions of the special contracts, since all of the questions referred to relate to such contracts, and could only be available to assist appellant on the theory that appellee was bound by the contracts.

[12] Having expressly found to the contrary, and it clearly and conclusively appearing

from the record that the verdict was based on a finding that the alleged custom did not exist and that the shipments were not made under the alleged contracts set up in the answer, the rulings of the court aforesaid, even if erroneous, could not have influenced the verdict or in any way have deprived appellant of any substantial right. Furthermore, if the record did not conclusively show that the verdict was reached on the theory above stated, and we were required to view the question from the standpoint of such con

(Appellate Court of Indiana, Division No. 2. 1. APPEAL AND ERROR 758(3)—BRIEFS —–

SUFFICIENCY.

Dec. 20, 1916.)

In action for death by negligence, objections to sufficiency of the complaint in setting up damages sustained by next of kin held sufficiently presented by appellant's brief, when supplied by appellee's brief.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig.

2. DEATH 64-DAMAGES
SPECTIVE BENEFITS.

758 (3).)

Loss oF PRO

Damages recoverable for wrongful death include what it was reasonably provable his beneficiaries would receive, so that it was competent to show the earnings of deceased, and that a large part of them were given to his parents and children for their support.

[Ed. Note.-For other cases, see Death, Cent. Dig. 83; Dec. Dig. 64.]

3. APPEAL AND ERROR 757(2, 3)—BriefS—

SUFFICIENCY.

A brief, not referring to instructions ex cept by general statement that they must be confined to the issues, and not setting out the pleadings and evidence, presents no reviewable question as to such instructions or motion for new trial based on error in instructions. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. 757 (2, 3).]

Appeal from Circuit Court, Knox County; B. M. Willoughby, Judge.

Action by Nathan W. Ringo, administrator, against the Vandalia Coal Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

James M. House, of Vincennes, and Henry W. Moore, of Terre Haute, for appellant. Oscar E. Bland, of Linton, L. M. Wade, of Vincennes, and A. J. Padgett, of Washington, for appellee.

IBACH, J. This is an action for the wrongful death of appellee's decedent while working in appellant's coal mine. The neg ligence charged is the failure on the part of appellant to supply and circulate sufficient air in its mine as required by statute.

The complaint is in two paragraphs. A demurrer to each for want of facts was overruled, and such rulings are separately assigned as error. A trial resulted in a verdict and judgment for appellee for $600. Appellant's motion for a new trial was over

In an action to enjoin the obstruction of an alleged water course, if the water dammed against was surface water there could be no recovery under the issues joined as to obstruction of a water course.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 51, 53; Dec. Dig 63.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied.