144 N.W. 226 | S.D. | 1913
Lead Opinion
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-
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*587 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’
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.
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.
The order appealed from is affirmed.
Concurrence Opinion
(Concurring specialty). I concur in -that part of the majority opinion which says: “We think that the complaint sets forth but one cause of action and that based upon contract,” but I find it difficult to accept the further statement that “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.” -Chapter 207, Laws of 1911, of which -section 4 forms a part, is entitled “An Act to regulate common carriers and to define die 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.” - Section 4 creates a duty on the part o-f the common carrier to receive and transport such freight “with reasonable -dispatch.” I quote only .this portion- of the section, among those creating -duties on the part of carriers toward ship
The duties of common carriers are also defined by section 1578, Civil Code, which declares: “A common carrier must, if able to do so, accept and carry whatever is offered to him, at a reasonable time and place, of a kind that he undertakes or-is accustomed to carry.” Section 1-597, Civil Code says: “A -common carrier is liable for delay only when it is caused by his want of ordinary care and diligence.”
Here then we have two provisions of law, sections 4 and 12 .of the act of 1911, and sections 1578 and 1597 of the Civil Code, both of which purport to define the duties and liabilities of common carriers. Which of these provisions is it that is “included w-ithin” the express terms of the special contract?- The majority opinion says it is section 4 of the act of 1911, but I can see no particular reason for -the conclusion. If either of these statutes became part of the special contract, I confess my inability -to determine which of the two it is. It occurs to me that a conclusion resting upon a process of reasoning erected u-pon a foundation so uncertain is not wholly reliable. It seems necessary, however, that the majority opinion should hold and assume that section 4 became incorporated into the contract, in order to reach the conclusion that a recovery of the statutory .penalty may be had- under section 12. I am of opinion that the complaint, while sufficient upon demurrer to sustain a recovery for breach of -the special contract alleged, does not state a -cause -of action under section 4. If it be conceded that some statutory liability enters into and becomes a part of this contract, I think, under the allegations of the complaint, it could only be that defined by section 1597 of the Civil Code, which says: “A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence.” The complaint is apparently framed and intended to cover this statute. The majority opinion say-s: “The clear import of the allegations — the inference to be drawn therefrom- — is' a charge that the defendant was guilty of unreasonable delay in such shipment.” * * * I cannot -draw any such inference from the statements in the complaint. The allegation of the complaint is that defendant “wrongfully and negligently failed and refused to
As shown by these allegations, the period of time during which the defendant failed to transport the freight, is wholly indefinite and uncertain and such allegations- are insufficient from which to draw the conclusion of negligence, as is done by the majority opinion. Under -section 1597 of the Civil Code, a recovery may be had for delay arising from “want of ordinary care and diligence.” The gist of such an action is negligence, the ground of recovery alleged in this complaint. The complaint does not allege that the carrier failed to transport -the freight with “reasonable dispatch.” Under section- 1597, supra, a failure to transport freight with reasonable -dispatch, is not actionable unless occasioned by “want of ordinary care.” I think the complaint states a. cause of action for the breach of the special contract alleged, but that it fails to state a cause of action under either of the