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Louisville & N. R. Co. v. Hull

merely nominal damages. The same difficulty of accurately measuring such damages arises in cases of slander, breach of marriage contract, and in cases where mental suffering is accompanied with physical pain. If, as argued, the law does not deal generally with the feelings and emotions, it may be answered that here the parties themselves have contracted with respect to those very things, or at least have contracted with respect to those things which naturally affect the feelings and emotions." No sound distinction can be maintained between the Telegraph Cases and this case. They rest upon the principle that damages naturally resulting from a wrongful act, and fairly within the reasonable contemplation of the parties, may be recovered. The logic of appellant's position, if followed, would lead to the conclusion that if it had lost this corpse, however negligently, no action could be maintained, at least for any substantial recovery. For if there is no property in a corpse, and there can be no recovery for mental suffering for the failure to carry and deliver it at the proper time, then for a very great wrong there would be practically no reinedy. The tenderest feelings of the human heart cluster about the remains of the dead. The duty of Christian burial is one which loving hands perform as a privilege. An indignity or wrong to a corpse is resented more quickly than a wrong to the living, and, if mental suffering may be recovered for in the one case, it is hard to see why it may not be recovered for in the other. The damages for the loss of a corpse and those for the delay in delivering it differ only in degree. In actions for breach of a marriage contract, damages for mental suffering are allowed because these are the natural result of the defendant's wrong, and in no other way can proper compensation for it be had. The same rule must apply in actions for negligence in carrying a corpse, if the carrier is to be held to proper responsibility in this class of cases. We therefore conclude that there was no error in the instructions of the court.

The question of negligence was for the jury, and, while the evidence was very conflicting, we do not feel at liberty to disturb the verdict on the ground that it is against the evidence.

It is earnestly insisted that the damages are excessive, and that the plaintiff's counsel was guilty of misconduct in his closing argument to the jury. The plaintiff was treated with proper courtesy. There was only a delay in the interment of his wife's body from one afternoon until the next morning. The corpse remained at the baggage room from the time his train left until that evening, when it was put on the next train, and taken safely to Slaughtersville. There is no intimation that the condition of the corpse rendered a speedy interment necessary. Appellant was not treated with indifference, but the conductor seems to have done all that he could; and, on all the evidence, it is hard to escape the conviction that the

Louisville & N. R. Co. v. Hull

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damages awarded are palpably excessive, and given under the influence of passion or prejudice. In making the closing argument to the jury, the attorney for the plaintiff commenced reading from the defendant's answer in the case, informing the jury that the defendant had entirely changed its theory of defense since it had taken its depositions, and that the plaintiff was not prepared to meet fully its present theory. On the objection of the defendant that this was a matter for the court alone, the court requested the attorney to desist from this course. Thereupon he proceeded with his speech by beginning to state the substance of the answer, and, on the objection of the defendant, the court again required him to desist. He then said the issues had been changed by the defendant. On the objection of the defendant, the court directed him to confine his discussion to the facts of the case, and the law as embodied in the instructions of the court, whereupon he said to the jury: "We have nothing in our pleadings that we wish to conceal from the jury. We do not have to ask the court to conceal our pleadings for us. All this was objected to, and the court refused to exclude it. It was improper. If it was desired to get before the jury the statements in the pleadings of the defendant, these pleadings should have been given in evidence on the trial, so that the defendant might have an opportunity to explain any inconsistency. When this was not done, they should not have been referred to in the concluding argument, which should have been confined to the evidence heard before the jury, and the law of the case as given in the instructions of the court. The attorney also said, in his concluding argument, this: "Time is precious with railroad companies sometimes. Mr. Hull telephoned me to meet him in Slaughtersville to come here. I started there, and found that the Texas train was an hour late, and I was told that they had stopped the train at Louisville to load a negro minstrel show. I do not know this. I was told this. Stopped that train, wasted precious time, loading Ward & Howes' or some other negro minstrel show. That train carried the mail, too. That shows how railroads do. They are exceedingly accommodating when there is any money in sight. They will hold a train an hour for a negro minstrel show, but it could not hold its train three minutes to get a corpse on the train. There was no money in that." Again he said: "I am told that when a railroad company gets into trouble they get all their witnesses together to take their affidavits. I am no railroad lawyer. I do not know this, but railroad lawyers tell me that they just have to do this to hold their witnesses to the mark, -to keep them from forgetting. Mr. Fisher and Mr. Summerhays doubtless gave their affidavits when this matter came up." Again he said: "If I had been at fault in this case, it was in asking so little damages. Mr. Hull and I visited Nashville to take depositions in the case. We were in the magnificent depot of defendant at Nashville (defendant's

Pittsburg, etc., Ry. Co. v. Viers

counsel suggested that defendant owned no depot in Nashville, to which he said that it is true he referred to the Central Station), which is more magnificent than Soloman's Temple. The ticket office there cost more than this court house, I reckon; and the doors of that station, more than plaintiff asked for his damages in this case, I imagine." All this the defendant objected to, and moved the court to exclude it from the jury, which was refused. It was improper for the attorney to go outside of the evidence heard by the jury, and the law of the case as given by the court. It was especially improper for him to state facts of his personal experience which had not been testified to, and were calculated to prejudice the jury against the defendant, or to swell the amount of the verdict. Considering the size of the verdict, in connection with the argument of the counsel, we are clearly of opinion that a new trial should be granted.

It is certified in the bill of exceptions that it contains all of the evidence heard on the trial. This is conclusive, as the record is presented, that the bill contains all the evidence heard by the jury, although, from the grounds for new trial, it appears, complaint was made as to the reading of certain depositions, which are not incorporated in the bill of exceptions.

Judgment reversed and cause remanded, with directions to grant appellant a new trial.

PITTSBURG, C., C. & ST. L. RY. Co. v. VIERS et al.

(Court of Appeals of Kentucky, May 28, 1902.)

[68 S. W. Rep. 469.]

Carriage of Live Stock-Liability for Injury on Connecting Line.* As a carrier at common law was under no liability beyond its own line unless it undertook to carry beyond its own line, Const. 196, providing that no common carrier shall be permitted to contract for relief from its common-law liability has no application where a carrier receiving live stock to be transported to a point beyond its own line stipulates that its liability as carrier shall cease at its terminus when the stock is ready to be delivered to the connecting carrier, and such stipulation is therefore valid.

Same Ratification by Connecting Carrier of Original Contract-Venue of Action.

Where a connecting carrier receives live stock from the initial carrier or an intermediate carrier without limiting its liability, it must be assumed to have accepted the stock under the terms of the original contract made with the initial carrier on behalf of itself "and con

*See Pennsylvania R. Co. v. Jones (U. S.), 2 Am. & Eng. R. Cas., N. S., 390; Page v. Chicago, St. P., etc., R. Co. (S. Dak.), 2 Am. & Eng. R. Cas., N. S., 622. See also, notes, 20 Am. & Eng. R. Cas., N. S., 728; 13 Am. & Eng. R. Cas., N. S., 187; 17 Am. & Eng. R. Cas., N. S., 289; 13 Am. & Eng. R. Cas., N. S., 194; 11 Am. & Eng. R. Cas., N. S., 586; Va. Coal & Iron Co. v. Louisville & N. R. Co.. (Va.), 21 Am. & Eng. R. Cas., N. S., 261.

Pittsburg, etc., Ry. Co. v. Viers

necting lines," and, having thus ratified the contract, may be sued on it in the county in which it was made, as if it had originally signed the contract.

Appeal from circuit court, Hardin county.

"To be officially reported."

Action by Viers & Patterson against the Louisville & Nashville Railroad Company and the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company to recover damages for injury to cattle in transportation. Judgment for plaintiffs against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, and that defendant appeals. Affirmed.

W. H. Marriott and C. H. Gibson, for appellant.

J. P. O'Meara, S. M. Payton, and S. H. Bush, for appellees. DU RELLE, J. The appellees shipped 68 head of cattle at Sonora, on the line of the Louisville & Nashville Railroad Company, to be transported to Indianapolis. The cattle appear to have been injured in the course of transportation, but not while on the line of the Louisville & Nashville Railroad. Suit was brought by the shippers against the Louisville & Nashville Railroad Company and the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company for damages for the injury to the cattle in transportation. The Louisville & Nashville Railroad Company set up its contract, which contained a stipulation that all liability upon it as a carrier of the stock should cease at its terminus, when the stock should be ready to be delivered to the carrier whose line might constitute a part of the route to destination, denied all injury to the cattle while in course of transportation over its line, and pleaded certain other matters not necessary to be here considered. By reply to the answer of the Louisville & Nashville Railroad Company, the appellees set up section 196 of the constitution, as avoiding the stipulation against liability for injury to the stock except upon its own line. A demurrer to the reply was sustained, and the petition dismissed, as to the Louisville & Nashville Railroad Company.

The action of the circuit court in sustaining the demurrer of the Louisville & Nashville Railroad Company to the reply was correct. The provision of the contract is not one limiting the company's common-law liability. At common law the carrier was under no liability beyond its own line. Such liability could be created by contract. If so, it was the result of the contract, and was not imposed by the common law. Therefore, whether the company contracted to be liable or to be exempt from liability, the contract was not in reference to any common-law liability, and section 196 of the constitution can have no application. This was distinctly recognized in Ireland v. Railroad Co. (Ky.) 49 S. W. 188, where, in an opinion by Chief Justice Hazelrigg, it was said: "It is urged that the clause is an attempted limitation of the carrier's common-law liability, and is therefore void. We do not think

So.

Pittsburg, etc., Ry. Co. v. Viers

At the common law, without a contract to the contrary, there was no liability beyond the carrier's own line. About this there is no dispute. The carrier, however, might contract to carry beyond its own line, and then it became, of course, liable beyond its terminus." And in Railroad Co. v.

Tarter (Ky.) 39 S. W. 698, it was said: "The general rule is that a carrier is not liable beyond its own line, unless by contract to that effect, express or implied." Elliott, R. R. § 1433; Bryan v. Railroad Co., II Bush, 597. To the same effect is the decision in Railroad Co. v. Cooper (Ky.) 42 S. W. 1134, and United States Mail Line Co. v. Carrollton Furniture Mfg. Co. (Ky.) 42 S. W. 342. And see Hutch. Carr. § 149b, and note to Wells v. Thomas, 72 Am. Dec. 231.

The appellant, the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, pleaded to the jurisdiction. It also answered, traversing practically all the averments of the petition, except the averment of the contract with the Louisville & Nashville Railroad Company; and a trial was had, resulting in a verdict for appellees for $425, on which judgment was entered.

The principal question presented upon this appeal is as to the jurisdiction of the court. The contention for appellant is that it had no agent or office in Hardin county, where the contract of shipment was made, and that the appellees cannot give jurisdiction to the Hardin circuit court of an action against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company by joining the Louisville & Nashville Railroad Company as a defendant,-it being a resident of Hardin county,-unless it shows a cause of action against the resident defendant. Meguiar v. Rudy, 7 Bush, 432; Fernold v. Speer, 3 Metc. 459; Stamper v. Lumber Co. (Ky.) 4 S. W. 330. See, also, Eichhorn v. Railroad Co. (Ky.) 65 S. W. 797. This contention may be conceded. Under section 73 of the Civil Code, it is provided that an action of this character must be brought in the county in which the defendant, or either of several defendants, resides, or in which the contract is made, or in which the carrier agrees to deliver the property. It therefore follows that as appellant denied residence in Hardin county, and was not to deliver the property in that county, the circuit court did not have jurisdiction, unless, within the meaning of the Code provision, the contract was made in that county; for the cause stands as it would if appellees had sued the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company alone, without joining the Louisville & Nashville Railroad Company as a defendant.

The contract, which is on the form of the Louisville & Nashville Railroad Company, and signed by the agent of the company and by the appellees, begins:

"Received by the Louisville and Nashville Railroad Company the following described live stock, to be transported in

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