L. & N. Railroad v. Levi & Ottenheimer

Ohio Circuit Courts

L. & N. Railroad v. Levi & Ottenheimer

18 Ohio C.C. 873, 8 Ohio Cir. Dec. 373

DecidedJanuary 15, 1893

StatusPublished

This text of 18 Ohio C.C. 873 (L. & N. Railroad v. Levi & Ottenheimer) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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L. & N. Railroad v. Levi & Ottenheimer, 18 Ohio C.C. 873, 8 Ohio Cir. Dec. 373 (Ohio Super. Ct. 1893).

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Opinion

Swing, J.

We think the judgment should be affirmed. Plaintiff’s action was for the loss of a barrel of whiskey valued at $78, which was alleged to have been received by the defendant below as a common carrier tc be carried from McKenzie, T9nn., to Cincinnati, 0., and while in the possession of the defendant was lost. The defendant admitted having received the barrel of whiskey, and the loss thereof, but say they received it as of the value of seventy-five cents a gallon, or $28.36 fcr the barrel; that it was shipped under a reduced rate of twenty-five cents per hundred pounds; that whiskey of greater .value was to pay forty cents per hundred pounds; and defendant admitted liability for the said amount of $28.36, whioh it was willing at all times to pay plaintiffs.

We think the defendant has failed in its proof to sustain the allegations of its answer. The bill of lading, or con[874]*874tract of carriage, does not support the defense set up. No rate is given. The value is placed at seventy-five cents a gallon, but there is no agreement or contract as to any limitation on account of loss or damage, by reason of any reduction of freight. It is a mere statement as to value, and no reason is given why it was placed in the contract or bill of lading; so in our opinion it is not neoessaryfor us to pass on the question, which was argued before us, at length, viz., whether a contract of a common carrier limiting its liability would be sustained, when the loss was occasioned by its own negligence, as there was no sucü contract there.

Harmon, Colston, Goldsmith & Hoadly, for Plaintiff in Error. Yaple, Moss & McCabe, for Levi & Ottenheimer.

"Furthermore, the judgment should be sustained as far as alleged errors that occurred were brought up on the motion for a new trial, as the bill of exceptions does not bring up all of the evidence. It is true that it purports to do so, but an examination cf the bill discloses the fact that quite a lot of matter introduced as evidence was not brought into the bill or made part of the record. We find no errors of the court in the admission or exclusion of evidence.

The judgment will therefore be affirmed.

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Swing, J.

We think the judgment should be affirmed. Plaintiff’s action was for the loss of a barrel of whiskey valued at $78, which was alleged to have been received by the defendant below as a common carrier tc be carried from McKenzie, T9nn., to Cincinnati, 0., and while in the possession of the defendant was lost. The defendant admitted having received the barrel of whiskey, and the loss thereof, but say they received it as of the value of seventy-five cents a gallon, or $28.36 fcr the barrel; that it was shipped under a reduced rate of twenty-five cents per hundred pounds; that whiskey of greater .value was to pay forty cents per hundred pounds; and defendant admitted liability for the said amount of $28.36, whioh it was willing at all times to pay plaintiffs.

We think the defendant has failed in its proof to sustain the allegations of its answer. The bill of lading, or con[874]*874tract of carriage, does not support the defense set up. No rate is given. The value is placed at seventy-five cents a gallon, but there is no agreement or contract as to any limitation on account of loss or damage, by reason of any reduction of freight. It is a mere statement as to value, and no reason is given why it was placed in the contract or bill of lading; so in our opinion it is not neoessaryfor us to pass on the question, which was argued before us, at length, viz., whether a contract of a common carrier limiting its liability would be sustained, when the loss was occasioned by its own negligence, as there was no sucü contract there.

Harmon, Colston, Goldsmith & Hoadly, for Plaintiff in Error. Yaple, Moss & McCabe, for Levi & Ottenheimer.

"Furthermore, the judgment should be sustained as far as alleged errors that occurred were brought up on the motion for a new trial, as the bill of exceptions does not bring up all of the evidence. It is true that it purports to do so, but an examination cf the bill discloses the fact that quite a lot of matter introduced as evidence was not brought into the bill or made part of the record. We find no errors of the court in the admission or exclusion of evidence.

The judgment will therefore be affirmed.

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18 Ohio C.C. 873, 8 Ohio Cir. Dec. 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-n-railroad-v-levi-ottenheimer-ohiocirct-1893.