Dunlap v. Chicago, M. & St. P. Ry. Co.

144 N.W. 226, 32 S.D. 581, 1913 S.D. LEXIS 272

• Court: South Dakota Supreme Court
• Decided: December 5, 1913
• Status: Published

Opinions

WHITING, P. J.

Appeal from an order overruling demurrer to plaintiff’s complaint. Complaint alleges that on November 15, 1911, plaintiff requested a car in which to ship a carload of turkeys from Newark and Pierpont, S. D., to Chicago, Ill.; that, in response to such request, defendant company placed a suitable car on the track at Newark to be used for said purpose, and thereupon — on or about November 17 — plaintiff loaded into said car about 1,000 turkeys, cooped for shipment; that plaintiff, relying upon using said car, collected about 300 turkeys at Pierpont ready for loading and shipment on said car, on or about November 18, 1911; that defendant wrongfully and negligently refused and ne-glectecl to have said car, or any car, at Pierpont on November 18, 1911, or at any time, for shipment of said 300 turkeys; that defendant wrongfully and negligently failed and refused to transport the turkeys loaded at Newark until or or about November 23, 1911; that plaintiff was damaged in the sum of $1,727.43; that, after sustaining such damages and more than 30 days before the bringing of this action, plaintiff made demand in writing on defendant for payment of such damages; that defendant has failed and refused to pay same; and that plaintiff be awarded double damages.

The demurrer to the complaint set forth five grounds, which, taken together, present but two questions: (1) If the complaint alleges any cause of action, whether it does not set forth two causes of action improperly joined — one in contract, the other in tort; (2) whether the facts alleged in the complaint constitute a cause of action. It is respondent’s contention that this complaint is drawn under the provisions of sections 4 and 12, c. 207, I_,aws 19x1. The act provides:

“Sec. 4. Company to Furnish Cars, Etc. It shall be the duty of am- common carrier, when within their power to do1 so, and upon reasonable notice, to furnish suitable cars to any and all persons who may apply therefor, for the transportation of any and all kinds of freight, and to receive and transport such freight with reasonable dispatch, and to provide and keep suitable facilities for the receiving and handling the same at any depot on the line of its road; and also to receive and transport in like manner the empty or loaded cars furnished by any connecting-carrier 'to 'be' delivered to any station or stations on the line of its road to be loaded or discharged, or reloaded and returned to the road so connecting, and for compensation it shall not demand or receive any greater sum than is accepted by it from any other connecting carrier for a similar service: and said common carrier shall not discriminate in the furnishing of cars in favor of any corporation, firm, or individual.”

“Sec. 12. Damages.' — -Attorney’s Fees. In case any common carrier subject to the .provisions of this article shall do, cause to bei done, or permit to be done any act, matter, or thing in this article prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this article required to be done, such common carrier shall be liable to the person or persons injured thereby for the amount of damages sustained in consequence of any such violation of the provisions of this article if recovered without suit; or it recovered by suit, such common carrier shall be liable to the person or persons injured thereby for not -to exceed twice the amount of damages sustained in consequence of any such violation complained of, together with costs of suit and a reasonable counsel or attorney’s fees to -be fixed by the. court in which the same is heard on appeal or otherwise, which shall be taxed and collected as part of the costs in the -case; provided, that in all cases demand in writing- on said common carrier shall be made for the money damages sustained before suit is brought for recovery under this section, and no suit shall be brought until the expiration of thirty days after such demand.1’

[1-2] Appellant contends that the complaint, if it sets out any cause of action whatsoever, sets out, in relation to the damages alleged to have been suffered at Newark, a cause of action based upon contract, and, in relation to the damages alleged to have been suffered at Pierpont, a cause of action founded in tort — it being appellant’s contention that, while the allegations of the complaint “inferentially” set forth the elements of a contract as to the one shipment, they fail to even “inferentially” set forth the necessary elements of a contract as to the shipment from the other point; and appellant contends that there is, therefore, a misjoinder of a cause of action based upon tort with one based upon contract. We think that the complaint sets forth but one cause of action, and that based upon contract. The request made by plaintiff was for a car to ship turkeys, not from Newark alone, but from both Newark and Pierpont. “In response to such request,” defendant placed a car upon the track at Newark “to be used for said purpose” — what purpose? — the purpose for which the request was made. This is certainly an allegation of an offer and acceptance, as, against a demurrer, the allegation of the placing of a car in response to plaintiff’s request will be deemed as an agreement upon the part of defendant to comply in full with such request. Into such contract thus alleged, there became incorporated all the provisions of section 4, supra, relating to the duties of the defendant railroad, and defendant became fully bounden thereby to the -same extent as though such provisions had been included within the express terms of a contract. The complaint therefore, if it is sufficient to allege a cause of action at all, sets forth but one cause of action, and that based upon contract.

Appellant insists that -such complaint fails to state any cause of action, it contending that: This i's an action apparently brought to recover the penalty provided by -section 12, supra, the law of which such section is a part is, so far as such section is -concerned, unconstitutional; even if it could be held- that such law is constitutional,- yet, the allegations of such complaint are not sufficient to entitle Iplaintiff to recover statutory penalty; and, if the complaint “be held to -state facts sufficient to show that plainiff has some cause of action, (it) is demurrable for that it fails to * * * contain a plain and concise statement of the facts constituting a .cause -of- action,” as required by section 119 of the Code of -Civil Procedure. Appellant bases this last contention upon a -claimed- indefiniteness in such complaint whereby it is rendered uncertain- whether plaintiff’s action is one sounding in tort or one based upon a contract. Having held that the complaint alleges but one -cause of action -and- that one based upon contract, this contention needs no further attention at our hands.

[3] Is section 12 of chapter 207, Laws 1911, unconstitutional? There is no claim that -the subject-matter of such section is -prohibited by the Constitution. The sole -claim is- that the title of such act did not permit of -the enactment of a provision giving a right -of action- — the right to- recover -double damages — when -such right of action is not. placed “within the control of the board of railroad commissioners.” The title of the act reads: “An act to regulate common carriers and to define the powers and duties of the board of railroad commissioners of the state of South Dakota in relation thereto, and imposing penalties for the violation of the -provisions of this act.” There is nothing in the title of such .act that would prevent the act from containing regulations in no manner under the power, control, or supervision of the railroad commissioners — nothing to prevent the enactment of a provision providing for a penalty, the fear of which might be an incentive to the prompt performance, by the common carrier, of a duty resting upon it. As stated by this court in State v. McPherson, 139 N. W. 368: “The title of an act fairly expressing the general subject covers provisions thereof for all proper means and instrumentalities which may >or will facilitate the accomplishment or enforcement of the purpose expressed.”

[4] Are the allegations of the complaint sufficient to entitle plaintiff to recover the statutory penalty? It has been, urged that if one seeks to recover by suit for any breach of the provisions of section 4, he must show compliance with the provisions of section 12 as to written notice and nonpayment, and must demand the penalty provided by such section, that no action can be brought disregarding the provisions of section 12; and that, inasmuch as any action brought -must be one asking for the recovery of a penalty, the pleading must be full and explicit, setting forth clearly the several statutory provisions of section 4, alleged to have been violated as well as the conditions precedent to suit provided for in section 12. Appellant cites as authority for the proposition that, in a complaint .seeking to recover a statutory penalty, the allegations must specifically and directly set forth the breach of those statutory provisions, noncompliance with which gives rise to the cause of action, the holding of this court in the case of Kirby v. W. U. Tel. Co., 4 S. D. 463, 57 N. W. 202. But first, is it true that no action, seeking the recovery of actual damages only, could be brought for a violation of the provisions of section 4? We think not. If section 12 were not in the act at all, a party injured through any failure of the common carrier to comply with the provisions of -section 4 could sue for and recover the actual damages flowing from such injury. If there was any provision in- this act — either in section 12 or any other part thereof — -specifically, or by necessary implication, providing that no suit .could be brought except under section 12, the effect would be different; but, instead of such a provision, we find one in section 12 which shows clearly the intent that actions could be brought without seeking the penalty provided by said section 12. The conditions precedent to the bringing of a suit, as set forth in section 12 by the express wording of such section, are required only “before suit is brought for a recovery under this section,” clearly implying that there can be suits brought under the act but not under that section.

[5-7] The question of whether there are sufficient allegations to entitle plaintiff to recover the penalty or double damage is, therefore, not necessarily before, us at this time because, even if the pleading is entirely insufficient to entitle the plaintiff to a recovery of double damages, yet, if the pleading is sufficient to entitle him to a recovery of actual damage, the complaint is good as against the demurrer. We would, however, note that the rule, requiring a pleading to set forth clearly and 'specifically the grounds upon which the statutory penalty is sought, does apply to the provisions of section 12, and the decision in the Kirby Case is directly applicable thereto; but a reading of section 12 reveals the fact that in this case, exactly as in the case of Belcher v. Railway Co., 28 S. D. 84, 132 N. W. 797, the statute imposes the penalty, not for any damage resulting from the wrongful act or omission of the company in the conduct of its business, as is provided by the act before the court in the Kirby Case, but solely and exclusively for a failure upon the part of the common carrier to pay the damage within, a certain length of time after demand made therefor. The pleading before us is very explicit and full in its allegations as to those matters provided for by section 12.

[8-9] Is the complaint sufficient upon which to recover damages resulting from defendant’s failure to comply with section '4? It seems clear that the two phrases, “when within their power to do so” and “upon reasonable notice,” as contained in section 4, relate to and grammatically modify the v/ord “furnish” and no other, word. Defendant having furnished the car, no question of notice or of the power of defendant is involved so far as the first station is concerned; and it did not devolve upon the plaintiff, even if we should follow the rule of pleading requiring the specific allegation as to each matter covered by the statute, to allege that it was within the power of the company to receive and transport such freight with reasonable dispatch. Under such section, after having received notice to furnish the car and having furnished the car, nothing but some unforeseen event can relieve the railroad company from receiving and transporting the goods. Was it necessary for plaintiff to allege specifically and directly that defendant failed to transport such turkeys “with reasonable dispatch” ? This question presents to us the proposition as to whether or not, in pleading the breach of a provision of a statute, for the breach of which no1 penalty is provided, it is necessary to plead directly and specifically, in the words of the statute or in equivalent words, the breach of such statutory provision. If section 4 provided a penalty for the breach thereof, the holding in the Kirby Case would be directly applicable to that part of the pleading pertaining to a breach of the provisions of said section 4, and it-would be necessary, in an action brought to recover such penalty, for the complaint to contain a specific allegation that the carload of turkeys was not shipped with reasonable dispatch; but, section 4 providing no penalty, and none being provided elsewhere for the breach of any provision of section 4, the rule laid down in the Kirby Case can have, for the reasons hereinbefore stated, absolutely no application to such section. Section 136, C. C. P., provides that, “'in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties’.” Under this statute, which is common to most, if not all, code states, a pleading is “usually construed, even on demurrer, to allege all the facts that can be implied by fair and reasanable in-tendment from the facts expressly stated.” 31 Cyc. 79; Roberts v. Samson, 50 Neb. 745, 70 N. W. 384; Miller v. Bayer, 94 Wis. 123, 68 N. W. 869; Chambers v. Hoover, 3 Wash. T. 107, 13 Pac. 466; Malloy v. Benway, 34 Wash. 315, 75 Pac. 869; Olery v. Brown, 51 How. Prac. (N. Y.) 92; Phillips on Code Pleading, § 352. In Miller v. Bayer, supra, the court approved the following rule which had been announced in the earlier decisions of that court: “If the essential facts can be gathered from the pleading, or may be reasonably inferred from the allegations, it is good, though such allegations be in form uncertain, incomplete, and defective” In Chambers v. Hoover, supra, the court said: “The averments of this pleading are vague and indefinite, and it is defective in other respects; yet, when bolstered by the rule of liberal construction commanded by the Code, we think we discern a cause of action. A suitor is no longer to be turned out of court if, by making all reasonable intendments in his favor, enough can be seized hold of in his pleadings to show that he has rights which ought to be enforced. He may be required, on motion, to conform his statement to the rules of good pleading, and, 'if he refuse, may be turned out of court; but, as against a demurrer, the office of which >is to raise a substantial issue on the law of the case, and not on the law of practice and pleading, evidentiary facts, and even inferences from averments amounting to mere conclusions of law, will be considered in his favor.”

Did the pleadings before us, by fair implication, allege that the defendant failed to ship said turkeys with reasonable dispatch? Do the facts pleaded clearly show an unreasonable delay? It appears that, for some five or six daj's after they were loaded into the car, the defendant neglected and refused to ship- said turkeys, and plaintiff alleges that such neglect and refusal were negligent and wrongful. The complaint certainly reveals an unreasonable delay, and, while it surely would -have been better pleading for plaintiff to have alleged, in the words of the statute, a failure to transport such turkeys zvith reasonable dispatch, yet the clear import of the allegations — the inference to be drawn therefrom— is a charge that defendant was guilty of unreasonable delay in-such shipment, and the pleading, as against the demurrer, was rightfully held good.

[10] Inasmuch as the complaint sets forth facts entitling plaintiff to recover damages suffered at the first station, it is good as against this general demurrer, and it becomes unnecessary for us to consider the sufficiency of the -allegations upon which plaintiff bases a claim for damages suffered at Pierpont.

The order appealed from is affirmed.