65 So. 508 | Miss. | 1914
delivered the opinion of the court.
Conceding that appellee has only one cause of action-on account of the damages alleged to have been sustained by it by reason of the Little Woods wreck, and only one-by reason of the damages alleged to have been sustained by it by reason of the Sea Brook derailment, and that it has a remedy at law for the collection thereof, such remedy is far from being plain, adequate, and complete. Its-right may depend upon the stating of a mutual account, and in any event, if it is entitled to recover at all, the-amount thereof will depend upon the correctness of the-many items composing its account, the proof of which will be attended by such difficulties and complications as' to render it well-nigh impossible for a jury to bear in-mind the evidence relative thereto when considering what verdict it will render. This account can be stated accurately only by the methods employed in a court of chancery.
Appellant contends, however, that the bill discloses no liability on its part, and therefore no occasion for an accounting arises. There is no merit in this contention, for independently of the contested provisions of the contract sued on, and which we will leave altogether out of view, appellee will be entitled to recover the damages sustained by it on account of the Little Woods wreck in.
It is true that the causes of action for the damages alleged to have been sustained by appellee by reason of the Little Woods wreck and Sea Brook derailment are separate, but both of them present matters of equitable cognizance, in that it is necessary for the two accounts relative thereto to be stated in accordance with the methods pursued in a court of equity, and therefore, the bill is not multifarious under the provisions of section 598 cf the Code.
Affirmed and remanded, with leave to appellant to answer the bill within thirty days after the filing of the mandate in the court below.
Affirmed and remanded.
ON MOTION TO CORRECT OPINION.
The decree of the court below was affirmed on a former -day of this term, and we have now been requested by counsel on both sides for a modification of the language in which a portion of the opinion rendered was couched. 'That language is as follows:
Appellant contends, however, that the bill discloses no liability on its part, and therefore no occasion for an accounting arises. There is no merit in this contention, for independently of the contested provisions of the con
We do not think this language could be held to imply what counsel are afraid it does, but, in order that there may be no doubt on that score, we will say that it should be read as if written:
Appellant contends, however, that the bill discloses no-liability on its part, and therefore no occasion for an accounting arises. There is no merit in this contention,, for independently of the contested provisions of the contract sued on, upon which we express no opinion, ap-pellee will be entitled to recover damages sustained by it on account of the Little Woods wreck in the event the evidence discloses that what is alleged to have occurred at South Point was the proximate cause of this wreck for the negligence there complained of is not the-negligence of any of the character of employees mentioned in paragraph “d” of the ninth subdivision of the contract.
Of course, we do not mean to imply that the court below is precluded from considering any other elements of negligence averred in the bill proximately causing the-injury complained of at Little Woods. We have simply left these other elements out of view, and expressed no-opinion relative thereto, for the reason that it was unnecessary to do so on this appeal. Neither have we-meant to imply that appellant is cut off from any defense it may have with reference to the Little Woods, wreck not disclosed by the bill of complaint and which may hereafter be made to appear in a proper manner.