Carter v. Jordon, et al.

(Decided May 27, 1913.)

Appeal from Hickman Circuit Court.

Estoppel-Claim in Judicial Proceedings-Matters Concluded.—A party who has, with knowledge of the facts and without fault of the adverse party, assumed and successfully maintained a particular position or claim in judicial proceedings, is estopped to take a conflicting position or to make an inconsistent claim, to the prejudice of the adverse party, in subsequent judicial proceedings where the parties and issues are, the same.

R. L. SMITH, H. F. TURNER for appellant.

BENNETT, ROBBINS & THOMAS for appellees.

OPINION OF THE COURT BY JUDGE LASSING-Affirming. M. S. Carter instituted his equitable action in the Hickman Circuit Court against A. P. Mills, L. M. Mills, C. A. Mills, F. E. Jordon and F. C. Whayne, in which he sought to recover judgment against the Mills brothers for $200, on a promissory note, and to foreclose a chattel mortgage on a saw mill to pay same. He alleged that Jordon and Whayne were claiming an interest in the saw mill property, and asked that they be required to set up and assert their interest.

The Mills brothers made no defense. Jordon and Whayne answered and pleaded that they were the owners of the saw mill property which plaintiff was secking to have sold, having purchased same at execution sale. They denied that plaintiff had a lien upon said property for $200 or any other sum; and alleged that his debt against the Mills brothers had been paid off and satisfied; and pleaded further that, in a litigation between themselves and Mills brothers, in the Hickman Quarterly Court, plaintiff had testified that his debt, which was secured by a lien upon the saw mill property, had been paid off and satisfied, and relying upon his said statement, they had purchased same; and that by reason of his conduct and statement, he was estopped from asserting a lien upon said saw mill to their prejudice.

Upon this issue, the case was prepared for trial, and, upon consideration, the chancellor was of opinion that the plea of estoppel was well taken, and he dismissed the plaintiff's petition in so far as it sought to subject the

saw mill property to the satisfaction of his debt. Plaintiff appeals.

The evidence shows that Jordon and Whayne had sued out an attachment against the Mills brothers in the Hickman Quarterly Court and caused it to be levied upon a lot of lumber, which had been sawed by the Mills brothers and was stacked up on the river bank preparatory for shipment. Appellant, claiming to have purchased this lumber, interpleaded in that action, and during the trial, which was conducted before the county judge, a jury being waived, he testified, as appellees say, that he bought this lumber from the Mills brothers, the consideration being the surrender to them by him of an open account of some $40 or $50 and his mortgage debt. Appellant states that in that action he testified that the contract was that he was to surrender to the Mills brothers his open account, amounting to $40 or $50 and that any balance received by him out of the lumber should be credited upon his mortgage debt. The decided weight of the evidence supports appellees and justified the chancellor in finding that in the trial in the quarterly court, appellant testified that the mortgage debt was satisfied in the purchase of this lumber. The evidence is clear that thereafter appellees caused the mill machinery to be sold in satisfaction of the balance of their debt, for which they had recovered a judgment in the quarterly court, which remained unsatisfied, and that at said sale they bought the mill for $100.

On this state of facts, was the chancellor justified in holding that appellant was estopped, in the foreclosure suit, to assert that the mortgage debt had not been satisfied? In 16 Cyc., 796, the author thus states the rule:

"A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings is estopped to assume a position inconsistent therewith to the prejudice of the adverse party. It is necessary, however, that the claim or position previously asserted or taken should have been successfully maintained; that it should be actually inconsistent with the position presently taken, and that it should not have been taken through the fault of the adverse party."

Applying this principle, which is supported by ample authority, to the facts in the case at bar, we find that in the suit in the quarterly court, appellant, in order to support his claim of ownership to the lumber, alleged that he had bought it and that the consideration for same was,

in part, the surrender of his claim secured by mortgage. That position is diametrically opposed to the position which he took in the case at bar, and appellees were, in no wise, responsible for his having taken such a position in the quarterly court. Again, in 16 Cyc., 799, the author states:

"A claim made or position taken in a former action or judicial proceeding will estop the party to make an inconsistent claim or to take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party, where the parties are the same, and the same questions are involved. Thus a party who has successfully interposed a defense or objection in one action or proceeding cannot shift his ground and take a position in another action or proceeding which is so inconsistent with his former defense or objection as neccessarily to disprove its truth.”

To the same effect are Doniphan v. Gill, 1 B. Mon., 199, and Lawrence v. Lawrence, 145 Ky., 61.

This principle applies with peculiar force to the case at bar. Appellant showed, in the suit in the quarterly court, that he had bought and paid for this lumber by cancelling his note which was secured by mortgage, and having succeeded in that litigation in relieving, to some extent at least, the lumber from the lien created by the attachment, he cannot now be heard to say, to the prejudice of appellees, that the lien was not extinguished. To so hold would permit him to perpetrate a fraud upon appellees. If the testimony of the Mills brothers is to be believed, this mortgage debt was not, in fact, satisfied by a sale of lumber, which was under attachment, but that is not the question to be determined here. It is immaterial whether the mortgage was in fact satisfied or not. The question is: May appellant, after having testified in that case that the mortgage was satisfied and in that way relieve the lumber in question from the burden of the attachment, now in another suit between the same parties, in utter disregard of his former testimony, be heard to say that the mortgage debt was not satisfied? We think not, and the chancellor correctly so held.

Judgment affirmed.

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Illinois Central Railroad Company v. Edelen.

(Decided May 27, 1913.)

Appeal from Jefferson Circuit Court
(Common Pleas Branch, First Division).

Carriers-Livestock-Insufficient

Facilities for

Loading-Liability-Instruction.-In an action for damages for injury to livestock alleged to have resulted from the failure on the part of the carrier to furnish reasonably safe facilities for loading, an instruction telling the jury that if they believe from the evidence that the plaintiff or his agent ordered and directed the defendant to place one of its cars at the freight house instead of at the company's regular place for loading the livestock, and then and there agreed with the defendant to take charge of the loading at the freight house, plaintiff thereby adopted the means at hand at the freight house for loading the stock, and the only duty which the law imposed upon the defendant was to exercise ordinary care in so placing its car at the freight house platform as to afford the plaintiff an opportunity to load the stock into the car with reasonable safety, is erroneous because imposing upon the carrier the obligation to exercise ordinary care to place the car at the freight house platform so as to afford the plaintiff an opportunity to load his stock with reasonable safety, even though the facilities for loading were such that in the exercise of ordinary care this could have been done.

Carriers-Livestock-Insufficient Facilities for Loading-Liability -Instruction.-Where the shipper designates the carrier's freight house as the place for loading instead of the carrier's regular place for the loading of livestock, and agrees with the carrier to take charge of the loading at the freight house, the carrier is not liable for a failure to furnish reasonably safe facilities for loading, unless the facilities for loading at the freight house were such that, in the exercise of ordinary care, the car could have been placed so as to enable the shipper to load the stock with reasonable safety, and the carrier failed to use such care, and by reason thereof the stock was injured

Pleading-Answer-Two Defenses in One Paragraph-Demurrer. -Where a paragraph of an answer contains two defenses, one® of which is demurrable and the other not, it is error to sustain a demurrer to the paragraph as a whole.

TRABUE, DOOLAN & COX, C. L. SIVLEY and R. T. CALDWELL for appellant.

EDWARDS, OGDEN & PEAK for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER-Reversing.

Plaintiff below, Allen S. Edelen, is a breeder of saddle and show horses, which he frequently exhibited at the various fairs throughout the State of Kentucky and other states. In September, 1907, he shipped several horses to Paducah to be exhibited at the Paducah Horse Show. His horses were in charge of I. C. James. In reshipping the horses from Paducah to Louisville one of them was injured, and plaintiff brought this action against the Illinois Central Railroad Company to recover damages basing his claim on the fact that the defendant. failed to furnish reasonably safe facilities for loading. From a verdict and judgment in favor of the plaintiff in the sum of $1,400 the railroad company appeals.

The railroad company maintains in Paducah a freight depot, about 450 feet long and 70 feet wide. There is a platform on either side and at one end. The car in which plaintiff's stock was being loaded was stationed near the west end, while the approach to the platform was on the east; and to reach the car the horses had to walk down the platform the full length of the depot, and then across the end of the depot, a distance of 70 feet, making a total distance of about 518 feet. It was near midnight when the loading of plaintiff's horses was undertaken. There were no banisters along the platform, which is only about four feet wide, and although freight cars usually stood on the track parallel to the platform, yet for some distance from the east end of the platform there were no cars there on the occasion in question.

According to the evidence of plaintiff there were overhead lights along the platform, and while the mare in question was being led along the platform she became frightened and fell off and was badly injured. Mr. James, who had charge of plaintiff's horses, engaged a car and paid the freight on the afternoon of the day the horses were shipped. He advised defendant's agents that the horses would not be loaded until after they had been exhibited that evening. Plaintiff's agents say that they objected to the stock being loaded at the freight depot, but were told by a representative of the railroad company that they would have to load at that place. The mare that was injured was three-years old and standard bred. She was shown many times and was never defeated in the show ring. Several witnesses testified that she was reasonably worth on the market when uninjured the sum of $2,500.