289 S.W. 237 | Ky. Ct. App. | 1926
Reversing.
In his petition appellant, who was the plaintiff below, alleged in substance that he was, during the period of four months following July 17, 1922, operating a coal mine near Grays, Kentucky, as a wagon mine; that is, the coal mined was hauled from the mines to appellee's railroad by wagons and dumped upon the ground, and thence loaded into coal cars. He further averred that this method of mining was then, and had been for a period of more than five years previous thereto, the customary method of mining in that community, and that appellee had during all that time held itself out as ready, able and willing to furnish coal cars to such mines; that during the four months period referred to he could have mined 50 tons, or a carload, of coal a day, had be been furnished the necessary cars; that each day he had ordered from appellee's agent a car to take care of that day's operation, and which he could easily have loaded with coal, but that during the entire period he had been furnished only five cars; that certain other named wagon mine operators at Grays, who were similar in all respects to him, had been furnished with a far greater number of cars; that during all the time in question appellee had sufficient cars on hand and available to have furnished him the cars he ordered, and that by reason of the appellee's discrimination against him and in favor of the other wagon mine owners named, and by reason of its failure to furnish him the cars ordered, he had not been able to ship or market his coal all to his damage in a named sum, for which he sought judgment.
The appellee first filed a special and then a general demurrer to the petition, both of which were overruled, and then its answer, the first paragraph of which traversed in the main the allegations of the appellant's petition. *299
The remaining paragraphs of the answer set up defenses similar to the ones which we held to be good in the recent case of L. N. R. Co. v. Brashear,
The appellant's petition stated a cause of action. I. C. R. R. Co. v. River Rail Coal Coke Co.,
Appellee argues, however, that, conceding appellant's petition was good on demurrer, yet, as the allegations of the second paragraph of its answer were admitted to be true by appellant's demurrer filed thereto, and as these allegations, if true, constitute a complete defense to appellant's cause of action, judgment properly went against him, and it should not be reversed, in order that he may be awarded a repleader. The trouble about this position of appellee, however, lies in its misconception of the nature of a demurrer. While it is true that a demurrer admits the truth of all material and relevant facts which are well pleaded, such admission can be used only for the purposes of the argument on the demurrer, and it is not evidence for the party alleging the facts demurred to. The admission is confined to the portion *300 of the pleading demurred to. 31 Cyc. 337, et seq. When the court, in searching the record, carries a demurrer to the answer, back to the petition, and sustains it, then it is the same as if the demurrer had been filed by the defendant to the petition at the outset. The answer is, under such circumstances, not considered, and it is the same as if it werenon est.
The admissions made by the demurrer are only the admissions necessary to the argument to settle the sufficiency of the pleading to which the demurrer is directed by the parties or by the court in searching the record, and as only the allegations of the pleading demurred to can be considered on such demurrer, the admissions go no further than such allegations. Macklin v. Trustees of Common School District,
These considerations necessitate the reversal of this judgment, with instructions to the trial court to overrule the demurrer to appellant's petition, and for further proceedings consistent with this opinion. *301