#### Joseph C. Beam v. Cleveland, C., C. & St. L. Ry. Co.

1. Recoupment— Tendency of the Doctrine. — The doctrine of recoupment tends to promote justice and prevent endless litigation by adjusting, in one, action, adverse claims growing out of the same subject-matter, thereby avoiding circuity of action and multiplicity of suits, and should be applied whenever it is appropriate.

2. Same — Where Applicable. — The defendant’s brother died in Chickamauga, and his body was shipped to his home at Bloomington for burial, over the plaintiff's railroad, and the charges therefor paid. In order to get it to Bloomington at the time arranged for the funeral, it became necessary, by reason of delays, to bring it from Indianapolis by a special train, for the cost of which the railroad company brought suit. At the trial the defendant, a brother of the deceased, offered to prove that when the body was shipped his mother and brother started on the train with it and upon their arrival at Cincinnati they and their baggage were transferred to the plaintiff’s train and were told that the body would also be transferred, but later they found that it was not. A ticket had been purchased for the body with the defendant’s money and was taken up by the conductor of the plaintiff’s train. Upon the arrival of the train at Bloomington the body was so badly decayed, by reason of its being left so long at Cincinnati, that it was unfit for public view. But the court, on the objection of counsel for the plaintiff, refused to admit such proof. Held, error, for the reason that the plaintiff was claiming payment for transporting the body of the defendant’s brother from Indianapolis to Bloomington by special train, and the defendant should be permitted to show in defense by way of recoupment, that he, as such brother, had paid the plaintiff for transporting the body by regular train, which the plaintiff undertook to do, but was so negligent and dilatory in doing it, that the body was decayed to such an extent by reason of such delay, that it was unfit for view, and that he was damaged on that account.

3. Same — What is a Proper Subject for Recoupment. — The claim of a party for damages occasioned to the corpse of his deceased brother while it was being transported by a railroad company to aplace where *25his body was to be buried is a proper matter of recoupment by him when he is sued by the company to recover for such transportation.

4. Parties — Persons Interested in the Dead Bodies of Kindred. — A brother of a deceased person who undertakes to pay for the transportation of his body from the place of his death to that of his burial, has such an interest in the dead body as entitles him to damages for an injury to it by the negligent act of the carrier while transporting it for hire.

5. Instructions — As to the Measure of Damages for Services of a Special Train. — In an action to recover for the services of a special train, where the evidence showed there was a special contract and a price agreed upon, it is error to instruct the jury that the measure of the plaintiff’s recovery is the reasonable price for the train. The price agreed upon must control the amount of the recovery.

Assumpsit, for the services of a special train. Appeal .from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.

Reversed and remanded.

Opinion filed September 11, 1901.

Livingston & Each, attorneys for appellant.

A. E. DeMange and J. E. Hoffman, attorneys for appellee.

Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was an action of assumpsit, brought in the Circuit Court of McLean County by appellee against appellant. The case was there tried by jury, and resulted ■ in a verdict and judgment in favor of appellee for $90. Appellant moved for a new trial, which being denied, he excepted and has brought the case to this court by appeal to effect a reversal of the judgment upon the alleged grounds that the court excluded proper evidence offered by appellant, and gave improper instructions at the instance of appellee.

The declaration consisted of the common counts, among which was one for $300 for labor and services performed by appellee for appellant at his request. Appellant pleaded non-assumpsit and gave notice that under it he would offer evidence on the trial that the dead body of his brother, Fred Beam, was shipped from Chickamauga to Bloomington over appellee’s railroad, and the charges therefor paid; that *26appellee should have transported same promptly but failed to do so, and negligently left the body at Cincinnati an unreasonable length of time; that in order to get same to Bloomington at the time arranged for the funeral, it became necessary, by reason of such delay, to bring it from Indianapolis to Bloomington by special train, the cost of which constitutes the sole cause of action sued upon in this case; and that the body was so badly mutilated, by reason of such delay, that it was unfit for public view when it arrived at Bloomington upon such special train; and that thereby appellant was damaged $500.

The record shows that appellant went to appellee’s train, which arrived in Bloomington from Cincinnati at five o’clock Sunday morning, July 30, 1898, expecting to receive from it the dead body of his brother, Fred Beam, who had died in Chickamauga on J uly 28,1898, and was shipped from there to Bloomington that day, via appellee’s-railroad, from Cincinnati, and should have arrived in due course of trains at 5:30 the evening before, but did not, and he was informed by appellee’s agent at Bloomington, that it missed connections at Cincinnati and could be brought on the next train, which would be due at that time.

But the body did not come as expected, and appellant learned from appellee’s agent that their next regular train from Cincinnati, upon which it would come, would be due in Bloomington at five o’clock that afternoon. Appellant informed the agent that the funeral had been set for four o’clock p. m., and the corpse would be too late for it. The agent replied that the only way it could be gotten to Bloomington before five o’clock, was to bring it from Indianapolis by special train, and in order to get such train, appellant would be required to deposit $500 to cover liabilities therefor. Appellant gave the agent a check upon a bank in Bloomington for that amount,-telling him that he gave it to him under protest, to which the agent replied that appellant would only be charged the actual expense of the special train, and the balance would be returned to him. The special train brought the body from Indianapolis to Blooming-ton, where it arrived at 2:10 p. m.

*27The next day, appellee’s agent took the check to the bank to get it cashed, and was informed by the cashier that appellant had directed it not to be paid, so he refused to pay it.

The actual cost of the special train was §181.

Appellant offered to show that when the dead body was shipped, his mother and brother Charles started on the train with it, and upon their arrival at Cincinnati, they and their baggage were transferred to appellee’s train, and they were told that the corpse would be also, but later, they found it was not; that they arrived at Bloomington at 5:30 Saturday evening, July 29,1898; that a ticket was purchased for the corpse with appellant’s money, and same was taken up by the conductor upon appellee’s train; and that upon the arrival of the corpse, it was so badly decayed because of being left so long at Cincinnati, that it was unfit for public view. But the court, on objection of counsel for appellee, refused to admit it, and appellant excepted and insists in this court that it was error to exclude it.

We are inclined to that view also, for the reason that appellee, in the case at bar, is claiming payment for transporting the dead body of appellant’s brother from Indianapolis to Bloomington by special train, and appellant should be permitted to show in defense thereof, by way of recoupment, that he, as the brother of deceased, had paid appellee for transporting the body by regular train, which appellee undertook to do, but was so negligent and dilatory in so doing, that the body was decayed to such an extent by reason of such delay, that it was unfit for view, and that he was damaged on that account.

The doctrine of recoupment tends to promote justice and prevent needless litigation, by adjusting, in one action, adverse claims growing out of the same subject-matter, and thereby avoiding circuity of action and multiplicity of suits, and should therefore be applied whenever it is appropriate. Stow v. Tarwood, 14 Ill. 427; and Scott v. Kenton, 81 Ill. 96.

That appellant’s claim for damages occasioned to the *28corpse of his deceased brother while it was being transported by appellee from where he died to where it w'as to be buried is a proper subject-matter of recoupment by him when he is sued by appellee to recover for such transportation, we entertain no doubt; and we are also of opinion that appellant, as brother of the deceased, and the one who had undertaken to pay for such transportation, had such an interest in the dead body as entitled him to damages for an injury occasioned thereto by the negligent act of appellee while transporting same for hire. The court therefore erred to the prejudice of appellant, in not admitting the offered evidence.

At the instance of appellee, the trial court instructed the jury that the measure of appellee’s recovery was the reasonable price for the special train, and counsel for appellant insists that the evidence shows that the price for which appellee agreed with appellant to furnish the train, was the actual cost thereof, and the court erred in telling the jury that it could recover the reasonable price therefor, and in that view we concur, for the reason that the evidence shows there was a special contract and the price agreed upon must control the amount of recovery.

For the error of the trial court in not admitting the evidence offered by appellant, and in improperly instructing the jury as above indicated, we will reverse its judgment and remand this case for another trial, not inconsistent with the views herein expressed. Reversed and remanded.