ESTILL tI. NEW
YORK,
L. E. & W. R. CO.
849
EsTILL
et al. v.
NEW YORK t
L. E. & W. R. Co.
LEONARD et al. v. SAME. (C(rcu(t Cowrt, W.
D. Missouri,
c. D.
November 19, 1888.)
course ot the journey on the cars, and within a day or twp B,fter the collision; that other miscarriages to the number of 103 ooourred in the herd at short intervals during 00 daye after the 'collision. There was testimony tending to show that the transportation ,of pregnant co:ws by rail wpuld not be apt to produce miscarriages. Ex. perts testified that several miscarriages occurring in a berd Of pregnant cows would quite likely cause other ,cows to abprt that had sustained no physical injury. Beld, that there was sufficient evidence to warrant a jury in finding that all the abortions were the result of the collision. .. BAlDI·-!4RABuRE 01' DA)(AGIIll.
In an aotion against a railroad company for injuries to cattle in a collision, many 01 which were cows with calf, it was shown that 5 cows lost their calves in the
In ,such case, the oattle befog l,mported stook intended foJ;' breeding purposes, and the weight of testimony being that the value of a cow as a breeder is permanently depreciated by suffering a miscarriage, held, that the measure of damage for the abortions, if found to have been occasioned by the collision, was the difference between the Value of the animals at the point of destination in their injured condi· tion and their value at the same place if delivered uninjured.
"
BAlDI-V4LUE 01' CATTLE-NOTIOE T() CARRIER.
Dsfendant'sliability for damages for its negligence is not lessened by the fact that it reoeiV'ed no notice floom plaintiffs that the cattle received for shipment were intended for breeding purpQ86S; especially where it knew that they had been im· ported EUrope, and were being shipped westward. away from the markets for beef c a t t l e . ' ,
At Law. On motion for new trial. These are actions by Estill & Elliott and by Leonard Bros. against the New York t Lake Erie & Western Railroad Company for injuries to Btock. There was a. verdict for plaintiffs in each case, and defendant moves for a, new trial. DraffM k Williams, Cosgrove k Johnson, and O. Guitar, for plaintiffs. PoUard k Werner and Ja'T1"U!8 A. Buchanan t for defendant. Before THAYER and Pan.IPs t JJ. THAYER t J. These cases were tried together before me while holding the circuit court in the central division of the western district of Missouri during the illness of the late Judge KREKEL. At my request, Judge PHII__ IPS sat with me on the hearing of the motion for a new trial t and subsequentlyexamined the stenographerts report of the testimony. At my solicitation t he hag prepared and forwarded to me a written statement of his vit'ws touching the merits of the motion. The views expressed by Judge PHILIPS (which are herewith submitted) are so comprehensive of the questions raised by the motion for a new trial, and are so fully in accord with my own, that I shall only supplement what he has said by a few additional observations, chiefly concerning the contention that the are excessive. v.41F.no.14-64:
rSclO In the Estill Elliott case the evidence tended to show that 3 bulls, were/S9 badly that the 3 valued at were eventually Bold for about $200; that from 10 to 15 cows were bruised or maimed in their market value; and that at least 13 cows dropped their calves prematurely. In the case of Leonard: Brosi theevidenee tended to. show thab,7 hend of cattle, valued at from $3,500 to $4,000,were either killed bythe collision, at · the cQ1liSlon.occurred;,tbat, 13 head of cattle" worlh, on au average, $500 each,'or '$6,500, of · 80' to (bulls aud 'depreciated their in!,I.rk;etililue;,anq:that , ;QQwSl' dropped tlleir p;r:ematurely.' In ,both 'ett3$ . the evidence to show ,that the' injured, animals' were from $400to$;50Q·perheatl.'The .' ture]y, It permanehtly'lessens'her rnaf:k;et vaJ,ue preIlPer;that, asageneral rule,anaccidentofthatkind, if ithecomesknoWDj 'to a, miscarriage ,8,fill;,a,g",re,',at he value, ()fean,' 'anhllal, as. a,',b,reeder"in the, ' Jt was further beef,ca.ttle. the cows'were not worth to exceed $30 or $40 per.head· .,The jury.may did fiM', facts · and the:damages likely, assessed also aborlions in the ii1erdwere tbe'direcl'resrilt of the on that account, as well as for the other injuries above mentioned, the amount of the verdict ill each case.is·readily in ill manlier'con,siatent with:thefactsas.found'by the jury> ' In my judgment,; therefore, ,the 'Coujrt: catlnot:say thattM, ,verdicts;are excessivetl and set them aside · on that· grbmld., :': ' I ,. It is contended, however, that the rule adopted. by the: oourt toesti,mate, dam:ageswas erroneou8; and that' the insufficient to warrant the,juryin holding the carrier liable for the abortions that occurred. Both of the questions have been considered by Judge PHILIPS, in the main decision, with his care and ability. I shall only add ,a: few" additiMal ,suggestiOns; Defendant's counsel apparently assumes ,that the fu,ctthilta cow lost -her calf 'prematurely did not permanently .1essonJ:1ermarketvalue;that such animals, or large numbers of them, ·at least" by cil.1'eful tr.eatmentwouldregain' their capacity to breed regularly, as ,well as their origirial or:n6rmalvalue. On this defendant's counsel contend, that plaintiffs ishould have been compelled to 'trace. the subsequent history' of each abi:lrtedoow, and that the measure of damageis what it may Jlavecostto: support ,and. treat the animals during the periodcihUsability, plus the at the date :6fthe trial.. Whether \be'm\1de for the losso'f while .the barreni$ not stated I and, apparently, is not considered. I apprehend that that iii .elem611t j
ESTILL. tI. NEW YORK,
t. E., &: w. R. CO.
851
of damage that ought to be c.onsidered,ifdefendant's theory of the measure of damages is adopted, inasmuch·as the cattle were very valuable; and had been imported, for breeding purposes, and the period of disability might last for two or three years, even if the animals eventually breeders. In addition to the suggestion made by Judge became PliILIPSthat defeudant'smethod of estimating the damage is not in harmony .with a well-established rule on the subject, and, if adopted, would,necessarily embarrass the trial of the cases with a multitude of collateral issues, I shall venture the suggestion that tbe argument advanced in ,behalf of that method of computing the damages also overlooks important testimony produced at the trial, which, in my judgment, has an important bearing on the question of the.measure ofdamage applicable to the case. While it is true that there was some evidence that the market· value of a cow, intended fOJ; a breeder, is only temporarily affected by a miscarriage, and that her capacity to breed regularly may be restored by proper treatment, yet the weight of testimonywas that the value of a cow is permanently depreciated by losing her calf prematurely; and that men engaged in stock-raising will not usually buy such animals for breeding purposes, because they are generally regarded as uncertain breeders at best. ,If it be a fact tbat they are regarded by stock-raisers as uncertain breeders, and if it be value of an animal is permanently depreciated by true 8uffering a miscarriage, ,no reason can be assigned" why' the lowed for the abortions; if they were occasioned by defendant's nt'gligence, snpQld not be the amount of the depreciation in value,estimated as of the date of the injury. An injury of tbat sort which permanently lessens the value of an animal, is like any other physical injury, and the damages awarded therefor should be arrived at ·by deiermininK to what extent the injury lessens the market value. I shall only add that oounsel have cited no authority which, on careful consideration, appears to me to the position that they have assumed, touching th13U1easure of damage. If it had been shown to the satisfaction of the court that the kind of injuries now underconsjderation.did not permanently affect the .value of the animals as breeders, there would have been more apparent reason for applying the rule which defendant's counsel invokes. But even if the rule invoked had been applied"and due tilloWllol1Ce had at the same time been made fot the cost of supporting the ,animals during the period of barrenness, as \Vallas for calves lost in the mean time, it may well be doubted whether the· rule. would haveopefJ!..tedto the advantage of the defendant. But, be this as it may, the testim<;my produced at the trial did not, in my opinion, warrant a departure. from the ordinary rule. ' . ,,l.cmwrtained some doubt, when the trial of these .wall concluded, whetberthe;evidence,asll. whole, was sufficient to support a finding that thecarner;;was responsibleJor alLor the abortions. ,Tbe question as to what:c&usoothem was one, of more than ordinary diffioulty, ·because it la,.g.ely,· Oll wn ,{rom eS,tabliehed facts, .and.u,poH gf ·,It; fact.
852
FEDERAL REPORTER,
vol.. 41.
as likely to decide properly as the court. Several experts, called as witnesses for the defendant, were allowed to state their opinion as to what caused the abortions;;and the facts upon which their opinions were predicated. In this respect the rules of evidence were liberally interpreted in favor of the defendant. With reference to the opinions expressed by the experts, it will suffice to say that, after a careful consideration of the facts cited in support of their views, it appears to me that as many reasons can be given in support of the finding of the jury as against it. It appeared in proof that 5 of the animals lost their calves prematurely on the cars within a day or two after the collision; that similar miscarriages, to the number, of 103 in both herds, occurre<1, at short interva'ls during a period of \:l0 days, beginning with their arrival in Saline county. The greater number, however, occurred within a comparatively short period after their arrival at the point of destination. The testimony of all the experU3 tended to show, that several ilbortions occurring in a herd such as this would quite likely cause other cows to mis· carry that had sustained no physical injuries; such latterabortions being the result of disease, or contagion engendered by the miscarriage of other animals. Judge has already' remarked that SOllIe of the abor. tions may reasonably be attributed to the collision,because they were so closely related to it in point of time. ' He has further remarked that the time within which an animal \\;ould drop her calf in conseqtence of a physical injury, would in each instance be largely dependent on the nature of the injury, the state of pregnancy, and the constitution and temperament ofthe animal. I will add that such abortions as occurred so long after the collision that they cannot reasonably be supposed to. have resulted from actual physical injuries, may. according to the testimony of experts, be attributed to a contagion engendered irithe herd as one of the immediate results of the collision. Whether the spread Of such contagion in the herd could have been arrested by proper care on 'plaintiffs' part, was one of the issues sttbmitted to the jury, under directions from the court, the propriety of which are not questioned. It:maybe plausibly argued (as it was before the jury) that the abortions were in great part due to of climate, or to fatigue, or inju,ries1Ut,turally incident to a long railroad journey, or to the plaintiffs! negligehCein failing to isolate cows that had aborted. The testimollY in the case tended to show that the ordinary incidents of a long raIlroad Journey would not be liable to seriously affect a pregnant animal, in that state of pregnancy which these cows appear to have reached. After a careful review of aU the testimony, I conclude that there was evidence in the case from which the jury might rationallyconclude l as they did, and as a forluerjury appears to have done, that the abortions were the result of the collision. It may be:Conceded that the finding of the jury in that respect rests wholly upon itlfl3l"ence and upon expert testimony,and that no one t'tln affirm with certainty that the finding is right. That, however, is not a sufficient reason for setting the verdict aside. The' verdict rests upon sufficient testimony, in my judgment, to warrant' reasonable men in' finding such a verdict; .and, under such circuwstancesj:itshould be permitted to stand.
ESTILL ". NEW YORE, L. E. & W. R. CO.
853
I accordingly concur in the view that the motion for a new trial should be overruled,if the plaintiffs in case No. 2,024 [Leonard et al. v. R. Co.] elect to remit that portion of the verdict that is in excess of the sum claimed in the petition. PHILIPS, J. Jurisdiction. My conclusion is that a foreign corporation statute, to be treated having an office in this state is, under the as a non-resident defendant; and the provision of subdivision 4, § 3481, Rev. St. Mo., applies, and therefore the suit could "be brought in a:ny county." It .seems to me that the provisions of statute invoked by de. fendant must necessarily refer and be limited to domestic corporations. JUdge HOUGH, in Sfmle v. Insurance Co., 78 Mo. 658, said: <;The defendant. being a non-resident of the state, was subject to suit in any county in this state. (Rev. St. 3481.) and could be personally served in the manner pointed out by t.he section under consideration."
It may be conceded to defendant's counsel that'the enunciation was not essential to the determination of that case; but it does not necessarily follow that the authority ofthis declaration can be waived by calling it a Ulere obitet dictum. It in no unmistakable language indicated the view of the state supreme court; and I am the more inclined to attach importance to it from the known fact thatJudge HOUGH was a Careful writer, and was not given to inconsiderate eXl1ressions in matters ofstatutory construction. There can be no question but that if this cause had remained in the state court, and the defendant, after moving to suppress the sheriff's return, had pleaded and gone to trial oil the merits, the defective service would have been waived. Kronski v. Railroad 00., 77 Mo. 362j Scovill v. Glasner, 79 Mo. 454, 455. And it does seem tome that Where a party has thus removed the cause into the federal court, and tried it on its merits, had one new triai,and has again retried it on the merits in its own approved jurisdiction, it would be trifling with the administration of justice to allow it to escape judgment on the ground that it had never been in court. As, said in Scovill, v. Glasner, supra: "He ought not to make the court a place of chance and appeal only when he has failed on another accepted issue."
Abortions. An examination of the evidence on this issuesho,vs that it presented conflicting views and facts, bringing it especially within the province ora jury to try and draw such inferences and conclusions as to them might seem reasonable. In several instances the abortions followed so early after the collision, while en route, and immediately after reaching the destination, as to make it quite probable that they were the .direct result of the injury. In other instances the evidence was such as might well have justified the jury in concluding that other causes,inde. pendent of thE! collision, may have occasioned the injury. But whether .or not such.ittdependent C8US.6S, or all combined, constituted the causa .causans, is not so apparent to my mind as to authorize the trial court to take as to the whole or any part, from the jury. The proxi-
8:/54;::
FEDERAL,
vol. 41.
niatemllit.lOnbetween the time -of: the iJiljury and 'the time of abortion can hav6,no\ defined limit as a mtl.tterof ia w. So much depends upon the constitution, temperament, and physiealcondition of the animal at the time that it must remain largely a question of fact and legitimate speculation whether or not the loss resulted from the injury. In this view. I attachno great importance tQ the fact, suggested by counsel, that niore seriously. injured in the collision did nof,tlportuntl1,'some time after!>thers seemingly less injured. , Much would 'depend upon the peculiar nllture of the injury, the state ofpregnatley'" the concussion in the l'egionofthe womb,' a.nd the constitutional temperament and health of theanlttllll. The difficulty a jury may encoutltet'1n· the analysis of testiniony, the separation of substance from speculation, and fact from conjecture, is no reason why the case should be wittldra.wQ'fromtheir consideration. H.()lcomb v.Bank, 92 Pa. St. 338i McOoy'v. Hyatt, 80 Mo. 139., It'is'only whete the plaintiffs' evidence is such as to leave the jury to grope In darkness, with no substantial tan- ' gib!e to gu4le them, that tAA,court should 'rhe moment the his judglIlent on of the reasonjury's conclusipn.l4'a:\fn from disputable facts, there is his and discrimination for that of thus indirectly, deny to the litigant his constitutional Jigh,tof:trialby jury. The c:r4J'rgegiventothejurypointed out to them Tery:, different on this if$su,e; and, as they are hee4ed th,e thepresumpJ;ion is they were satisfied,}r9II,} tq.e evidence, that.,the "b9rtions were traceable to the collision, rathertb,a.Jlito aJ.1y other source· . o!pamage8. , is made on this phraseology of the ,to the jury:: ] . .. the ,pllrpose of tra,nsp()rtation, the defendWa$ in la,W" to.?eliV,e',r,; ,b!3rdS of cattle, at the terminus of Its tn as good CODlhtion aslt received the same. It is .this was too prehensive, and was cal- . culated to as it woulq)nclude in tIle dll-mages those incidentii inseparable,! in the of, reas9nable precaution, from the transportation of live-stock; 'such or orJnjuries done by one to the other, and the like. This language muslbe considered in connection with the 'whole chQ1'ge;and' construed with reference to the subject-matter, and the sense in which the jury of ordinary intelligence are to be presumed to have understood: it. The subsequent part of the charge very cleadyshows that the changed "condition"alluded to was such as resulted from defendant's culpable negligence as acarrier,-in other the gravamen of the complaint, words, from Nor do I think and the. matter over which the there was any hurtful error in this respect as appIiedto the special instance of the: bull' Lord William; 'Cor while the plaintiff's evidence tended: to show that" ,ill' his apparentconkiition, when 'landed in Saline county, he was setic)Usly :injured ,or' worthless; it must be presullled the heeded the.,subsllquent factdevelopeq.that plaintiff. realized $715 in his
If
II
ESTILtV."N:EWYOR£:,·
1-
& W. ·R. CO.
'stIle. Under this head, counsel make two other objectiolls to the ruling 'of the court. One is that plaintiff should not have the benefit of the .damages apparent at the time of the completion of the carriage; and the other, :that they should have been required, by their evidence, to trace out the history of each animal sued for, and show the result oftheirijury and consequent damage at a period time of deliveryltt 'the end ofthe journey. TM argument is that the,s.ppareDt animal may 'have been- 'incident'to mere travel,; and, without proof, th'epresumption would be that the animltH:l()()n recovered, and for such injury it is not liable as a common carrier. This proposition inevitablyl:eads .to the second contention,--that the plaintiff should,ih developing hiscaae, go beyond the date·ofarrival in SlI.line county, and trace out ,the history of ea.chanimalup to the date of tria!. It is cQritended, that the general rule of damages laid down by the court is applicableoIily to the carriage of inanimate subsiances,. sUchaR merchtindise, and· possibly to beef cattledestined·to a known particular market, but not to cAttle designed for 'ordinary Use. The only authorities cited in prdpositionare Streett.v. Loo/niier, 84 Mo. 469, ,and ;Gfl,lett\'. Railroad 00ry·· 8 Allen,.D60; ,These cases but establish the rulethltt in theaetion of damages" for an injury to a horse, where the animalrecOvers, the plaintiff may, under proper avermentS, recover for medicines and services in curing thij:animal,and hisdepteciatedvahle IIp to'lhe But tbisin nowise ttenchefi'uporithecgeneral rule thltt, ,in the action Of damages,fdrhreachofcontract bY'a common"citrrier/fdr the tranportation of property injured in the llleaBure 9£ niB the difference between the value of the!gbtids as, orin the oondition 'when; delivered,an'd wbat1heir vitIue would have been if they' had: not been damaged in the conrseoftransportation." SSnta. Dam. 237; Gray v. Packet 64 Mo. 50.' I knoW of no distiIiotionmade in favoraf .live-stdck.,The instance put by counsel as to the shipment ofbeefcattle, destined'foria particular market, does not help hig airgument. In that case the-law'will compel the shipper, if he had noti(le when he received . the cattlathat they are' de'signed for a particular market, to pay the value of suchea.ttle in that particular market on the 'date they should have been' delivered, without regard to the market value at the' termination of. the 'route when delivered. This is the exception to the general rule. So Sutherland, (volume 3, p. 242,) says : . "The carrier can be cbarged with no moretban. the market value there. un'les8 he has .contracted to carry it there tofultil' a contract of sale at a greater 'price." And" this author, both on reason and authority," in the same connecoombat the proposition that the carrier should have the tion, ··benefitoh.. oontract by which the consignor was: really to have lesS'than .the. market value at the point of delivery, when the carrier hadrio'notice 'of such BttoooDtract.The rule in question is ooij of. protectiont6 the carriet, .and he ought'oot to be heardito complain Of it: ' bet·t&restabHsbed than fortne t.tbefr.'dal'nllges,'would hOtrbepermltltedto show what thllymfacfdtd' sell
856
vol. 41·
.certa,in of the cows for; although defendant might be permitted to do so (as was acporded to it in this case) for the purpose of showiQg that plaintiffs in fact Were not damflged, or to the extent claimed. Why, then, requirepb,tintiffs, in the first instance, to proceed affirmatively to trace out1;he suhsequent history of each cow, when they could not enhance the measure of damages by showing that in the final disposition they received only .so much for her? Again, such a rule would, in practice, lead ·to confullion, and involve the jury in the inextricable meshwork of collateral isSIWSj tlnd inquiries after facts absolutely unascertainable with any proximate certainty. Ru.les of law for the attainment of justice must be uniform am'l certain. The rule as to the measure of damages permits ,pp to the time of trial, to show the condition of the injured the animal, mere}Yasa means of ascertaining t,he result of the injury inflicted, 80 as to betteren.able the j'qr<y'to fix the damages at the time and place of iJf the cows did subsequently abort, this is proof only of the extentoQf the injury infliptedi as much so as if they had subsequently died from. tPeeffect of the collision. 'l'heonly known limit to the inquiry up to trial is whether 9r s.l,lbsequent development in the to the injury illflicted by the condition of .the animal is traceable carrier.J(ainv. RailroadOQ'j.29 Mo. App. 61, 62; Sorlm8on v. Railroad 00., 36 Fed·.;Rep. 166, 167,. .The dire<:t proximate consequences of a wrong£uJ Il,(ltare those whichQCour without any intervenipg independent injury and the consequence cause; and t1;wextent .of does notaffect,the rule. IJr(fl!11l"v. RaWroad 00., 54, Wis. 342, 11 N· Vol. Rep.S56, 911. . .' .'. , , · It is fUJ;tbe.rinsisted, in this connection, that the evidence, on the part of thedefend/l!nt especially, .tended to show that the effect of an abortion Oil a. QO,w:Js too conjectul[atandl,mcettain to make; it the basis of damages.fl'Q liupport this jt is cited that a cow, having once aborted, tpay, under certllin conditions of treatment an.d reletting W the bull, breed. again, and .that abortions may ,measurably be prevented by the isolation of tAa pregnant cow. But how do such fa.cts affect the qllestion of such and abortion depreciating the market .value of tpa GOw? As well say that the' market value of p. stallion is not affected by the fact that he is an uncertain foal-getter, or is certain only under favoring conditi.QDs of treatment and delays not common to other breeders. This very fact depreciates his market value, and proof ,of it should go to the jury for them to say to what extent it impairs his ,va.lue. It is further urged that such damages are special, and not the natural and ordinary result oithe injury. As well might it be said that in the case of a female passenger, in a state of pregnancy, receiving an in llr.. collision, she Wigbt .have recovered without difficulty or eenoas .consequence but for the fact that she happened to .beenceinte, and the .injury. brought on prElmature delivery, resulting in death. The railroad PGIUpany coulQ not attribute the death to thenbortion, and escape damages consequent therefrom; for he whose negligent act puts in motion all instrument of mischief is answerable for the consequences from the wrongful aot. Defendant seems to complain
ESTILL
e.
:NEW YORK, L. E. &: W. R. CO.
857
that plaintiffs were permitted to show that the cows were designed for breeders, and that it should not be held to the measure of damages without having notice of such when it made the contract of shipmentj the result of which would be that, in estimating the market value of the cows, the standard would be their value for beef. If this wereadmissible, the facts and circumstances are such as to affect defendant with notice. It knew these cows and bulls were imported from Europe. They were not going east, in the direction of the beef market. Why were they being brought from abroad, and carried across the continent to the interior of Missouri? No jury, on such evidence, would be permitted by the court to find that defendant had a right to suppose that such cattle, consisting of bulls, cows, and heifers, were designed merely for beeves. No jury could hesitate to find from facts so obvious to the common sense of mankind that defendant had notice of the fact that such cattle were designed for breeding purposes. The learned counsel for. defendant recognizes this obvious fact in his argumentin thiscause,where, on page 26, he says: "Seven head were sold in Denver in 1885. They were evidently sold as breeders, as cattle are not shipped there for beef." The fact that such cattle would likely breed, or not, would, in the ordi.nary course of things, affect their market value in Saline county, as the evidence abundantly showsj and if, by reason of the injury, that lOarket value was depreciated, it is a consequential damage directly ensuing from the injury. The charge to the jury, in its separation and classification of the facts, clearly put the burden of proof on plaintiffs to show what damages were sustained through injuries and abortions. After plaintiffs made proof of the number of abortions, and the effct thereof. on the market value of the cows, they had made out a prima facie case. The defendant was then accorded the right to follow up in detail the subsequent history of each injured animal, and show, if the fact existed, that the real damage was less than that claimed by plaintiffs. The fact that it may have been difficult or inconvenient for defendant to do this cannot alter the rules of law or evidence. The argument ab inconvenienti would often O\Terturn most valued and deep-rooted rules. This is an entire misapplication of thel'ule of evidence, invoked by counsel, that the party in whose exclusive possession certain evidence is should produce it. Notice. It is insisted with great zeal and ability by defendant that it should not be beld to accountability for the· result of the miscarriages of the cows, without proof of notice to it, at tbe time of their acceptance for transportation, that the cows were pregnant. The general rule on this subject is well stated in Hart v. Railroad Co., 112 U. S. 340, 5 Sup. Ct. Rep. 151: "As a general rule, and in the absence of fraud or imposition, a common carrier is answerable for the loss of a package of goods, though he is iKnorant of its contents, and though its contents are ever so valuable. if he does not make This is reasonable, because he can alwa)'s guard on being informed of the himself by a special acceptance, or by nature and value of the articles before receiving them. If the shipper is gUilty oj fraud or imposition, by misrepresenting the nature or valUe of the articles, lie destroys .11ia.claim to indemnity. "
vol. 41; . .,
dn boarding tbetrain, to,make,knowl1hisor her physioal condition,s9 that tbe cal1rier more care in the train to avoid collisions or, accident!! from, Qthel' causes." ,', ' c,'
": SoSutheHand on Damages {volume 3; pp. 243, 244,} elearlyrecog:. the liability of a carrierwheie be has failed to qualify his liability by·anoticeto the shipper, or qualiification'of the contract., Counsel for defendant" having to concede this, general rule, contend that it is limitedto'thettlere value olthe property taken for transportation, but does not the condition of the property. In support, we are cited ,to CaSe, 15 Wall. 524. This case is not pertinent. It the question as to defendant's liability for injury to adjacent property occasioned, by the explosion of a package of glycerine opened by him, without ,carelessness, in ignorance of its contents, which packagewl\s taken for transportation. It did not involve the question as to whether or not the carrier' would have been liable for the loss or injury to the package taken by him in ignorance of its contents. when received. In Hart v. Co., aupra, the shipper was not permitted to reoover'the aotual value afhis in transporta-, tion, ·for .the sole reason·that he 'had' by special contraot limited the car'" tier's liability toaless valuation. The reading of this case, however, and'theauthoritiell therein oited,can leave no doubt that but for the special contract the ca.rrier would have been liable for the inherent value of the' r41oers; although' unknown to it, at ;the timeo! acceptance for trans.., portation. The case' of McOune v.RailJroad Co., 52 Iowa, 600, 3 N. W;Rep.615j:ipresentsa case more in point. That was an injury in tr&Dsportationtoacow with' calf. While it is true the cow was so far advanced·in pregnancY' as p0ssibly' to have warranted the inference of notice of'thefact, yaMhe opinionof, the court is not so confined, but in unmistakeable terms the court lays 'down the law to be that shippers of seek the agent of a carrier, and make, known the physicaleondition of his' stock.» The opinion further says: ,; As weUrequire eacbpassenger. upon:parchasi!lg bis or ber ticket, or upcI · . , "
"Supposeawomanin a state of pregnancy, not obvious to the casual observer. should take passage on a:railroad car.. :andthrough the negli4 ·gence 'Of the carrier' receive, an injary.resulting in abortion, greatly im. pairing her general health and usefulness. In an action for damages, would not proof of this fact becompe:tent in aggravation of damages as the direct result of the injury? and W'ouldit be any defense that, on taking. passage, she did not notify the ticket/agent and conductor that she was . I thinkthes6 ,questionsdl'eat:lsweredadversely, to defendant's contention in the cases of Oliver v. Town of La Valle, 36 Wis. 592; SteWart v.City.oj Riponj38 Wis. 5 9 1 . ' , , " ' , ' ... ,'lheVerdict. Time will Dotperl1lit ine to enter upon an :analysis of the evidence to show whether or not·there wap evidence to' reasonably . of t1:le .' The attention of thejuty tQtbe, evidence result 'of ,the injudes, and all to what Aumber and character of catUe:,wel'e affected. As a matter of course, what the plaintiffs paid for the cattle in
RICHTER": FRANK.
859
'and what 'they cost lhem ·lnnded in Saline county, could not beconsidersd by the jury. There was evidence in the case to warrant the ainount 'Of the verdict. It is true that the conclusions ofthe jury must in pat1; have been predicated upon expert testimony; but,'if:that testimon'y was competent, its probative force was for the jury. It would itivolve a contradiction in practice for the court to hold that certain evidenOEl was admissible, fot the establishment of a. given fact, and then say that, al" though it carried satisfaction to the minds of the jury, the court would not abide the finding, as it may have been rather ptoblel1latical than founded<lQ· known faots. .
RICHTER f1. FRANK. ·
(Clrcuit Court, N. D. IlZinois. Harch 17, 1890.) bought stock in a land and cattle company from B. Bros., with the option of reselling to them within a certain time! and defendant guarantied performance of ,the contract by S. Bros. Afterwards thIS company sold out to another, and transferred,to itall its property; but plaintiff had been asked. consent to the sale and to take 'stock in the new company in exchange for his,alid had refused, saying he relied on defendant's guaranty. Plaintiff's stock had never been transferred to hi.m on the books of the company, and remained in the name of S. Bros., who voted on it in voting for the sale, but there was stock enough besides this to authorize the sale. Defendant also owned stock and voted on it. HeZd, that defendant was not released from his guaranty. to SAMlI-'GAHBLING CONTRAOTs-OPTION TO Buy OR BBLL STOOL A contract by which stock is sold at a certain price with the option to the purehaser to resell it at a futllre time for an increased price, whi.ch increase is only the amollnt of interest Which, by the time for exercising the option, would accrue on the amount paid fpr the stock, is not a gambling contractwlthi.n Rev. St. Ill. e. 88, lIllO, W:hioh makes it a penal offense to give an option to buy or sell, at a future time; stock in any railroad or other company, and declares such contracts to be gambling contracts. . 8.S4IfB-EXEOUTION IN ANOTIIER STATE.
1.
G17A'BANTr-RELEASE OJ!' GUARANTOR.
Where a contract III executed in a state in which. it is valid, and a person there to guaranty its performance, the guaranty.w valid, though it fa actually af:fiXed in a state in whi.ch the contract is void.
At Law.
O. H. Renny, for plaintiff. A. for defendant.
BLODGETT, J. This is an action against defendant as guarantor upon a contract, dated Decembor 12, 1885, between the :firm of Swan Bros., doil1ft bllsiness at Cheyenne, Wyo., parties of the first part,and the plainti,fi, 8S party of the second part. The contract in question recites, insubsfunce, that the party of the first part, SwahBros., has sold to plaintifi550 shares"of $100 each, in the capitalstock of the Horse Creek Land&Catde Company of Wyoming Territoryt for which the plaintiff has paid to them $55,000, on condition that plaintiff should have the right to elect to resell said stock to Swan Bros. ,at .any time between the