Odom v. Gulf & Ship Island Railroad, 57 So. 626

57 So. 626 | Miss. | 1911

Lead Opinion

Mayes, C. J.,

delivered the opinion of the court.

On the 28th of January, 1911, E. M. Odom brought a suit against the Gulf & Ship Island Railroad Company, in which he sought to recover five thousand dollars damages for the failure of the depot agent to protect him from alleged abuse and maltreatment by a section foreman of the above railroad. It would be hardly worth while to set out .the declaration at length. We shall only set out the substance of the complaint as stated in the declaration. The declaration states that about the 17th of April, 1910, Odom went to the depot of the Gulf & Ship Island Railroad Company, located at Star, for the purpose of transacting “business with the agent of the railroad company,” and, on arriving at the depot, a section foreman employed by the railroad company met him at the door, and cursed, abused, insulted, and maltreated him in the presence of the depot agent. It is alleged that Odom appealed to the station master for protection, but the station master refused to have anything to do with the affair, and refused to attempt to protect Odom from insults, abuses, etc., or to attempt to cause the section foreman to desist. The declaration then alleges that the railroad company owes the duty to the public to employ competent servants in every capacity, and that having in its employ a section foreman who was a moral degenerate and a drunken sot, having no regard for the rights of the general public resorting to the station of his master to transact business with his master, was a violation of the duty the railroad company owed the public. The declaration further alleges that the railroad company owes the duty to the public to have a station master competent in every respect, and with moral courage sufficient to enable him to protect people coming to the depot on business, ■ from ruffians and drunken desperadoes, and that the railroad company failed in this, and was grossly and willfully negligent in performing the duties due to this plaintiff and the general public, to the plantiff’s damage of five thousand dollars. The declaration shows that appellant relies for his right to recover against the railroad company on the failure of the depot agent to protect him from insult and abuse, but wholly fails to allege any facts which show that the railroad company owed appellant any duty whatever. This declaration was demurred to on several grounds; the main one being that it stated no cause of action. The lower court sustained the demurrer and dismissed the bill, and an appeal is prosecuted from this judgment.

. The railroad company is engaged in the business of public carrier, and its agents are placed in the depot for the purpose' of aiding and assisting in the discharge of its public duties. When a person seeks to claim protection from insult and abuse, and to hold a railroad company liable for failure to give the protection, such person must prove that he was at the depot for the purpose of 'transacting some business with the agent in connection with the service he is to render the railroad company in discharging its duty to the public as a common carrier. We are not prepared to say that the liability of the railroad is any different, whether the person claiming the protection shall have gone to the depot to have dealings with the agent as a common carrier of goods or passengers, or any other service which the railroad undertakes to render the public as a common carrier. Sometimes, and in some places, the railroad company runs a telegraph office in its depot for the use of the public. If a person go to the depot to send a telegram, such person in such a case, by reason of his contractual or intended contractual relations, possibly has the same right to claim the protection of the railroad company while at its depot for this purpose, as would a person going to the depot for the purpose of transacting business with it as a common carrier of freight or passengers.

But the declaration does not state that the appellant went to the depot to see the agent on any matter connected with the business of the company. The declaration merely alleges that appellant “went to the depot for the purpose of transacting business with the agent of defendant.” But what character of business? Was it private business with tbe agent? Had he gone there to procure employment? A declaration must state a cause of action. The only duty resting upon the railroad company was the duty to protect when the business which took appellant to the depot was in connection with the business of the company. A railroad company does not owe the duty to the public of supplying general peace officers for the state.

The universal rule of pleading is that pleadings are to be construed most strongly against the pleader. McCerrin v. Railroad Co., 72 Miss. 1013, 18 South. 420; Powell v. Stowers, 47 Miss. 577; Clary v. Lowry, 51 Miss. 879. If appellant went to the depot to' transact business with the railroad company as a public carrier, through its agent he should have so alleged, and stated what the business was. Failing to do this, he failed to state any cause of action. The facts alleged must show a duty, and a breach of that duty, before any liability can attach. Under the case of Insurance Co. v. Keeton, 95 Miss. 708, 49 South. 736, no judgment by default could have been taken in this case because it wholly fails to state any cause of action. If everything placed in the declaration be conceded to be true, there is no liability.

Sec. 4867 of the Code of 1906 is not intended to make the depot agent a general peace officer of the state. The authority conferred upon them by the above section is intended for use as the agent of the railroad company, to enable them more completely to discharge the duty that rested on the railroad company before the enactment of the statute to protect any member of the public who goes to the depot to transact railroad business. The case of King v. Railroad Co., 69 Miss. 245, 10 South. 42, is decisive of the above statement of the law. The court, speaking through Judge Campbell, says: “We reject the view that depot or station agents of railroad companies are, by ‘An act to amend the railroad supervision laws of this state,’ approved February 22, 1890, made officers of the state, and its representatives in the exercise of the powers conferred, so as • to relieve their principals from responsibility for their acts. The act cited creates the power and the duty prescribed to be exercised and performed by depot or station agents, as such, and for their principals. Under the act they are neither more nor less than depot or station agents, with the additional power and duty prescribed by it, to be exercised and performed for and in behalf of their employers. The language of the act excludes the theory that they are made officers, for it provides that they shall ‘ arrest and deliver to the custody of the most convenient sheriff or constable, or other proper officer,’ etc., thus showing that the power devolved on them is to be exercised at their place of business and in their capacity • as its supervisor. The act is a part of the scheme of railroad supervision by the state, and its effect in the matter now being considered is to make it the duty of railroad companies, through their depot or station agents, to preserve order in the waiting rooms in their respective stations.”

The case of Andrews v. Railroad Co., 86 Miss. 129, 38 South. 773, is conclusive of the proposition that when a person goes to the depot on a private matter, and becomes involved in a difficulty about a private matter with the agent, the railroad company is not liable. In-all the eases cited by counsel for appellant, where this court has held the railroad company liable for insult or abuse, the facts showed a duty on the part of the railroad company to protect by virtue of the actual or intended contractual relations with the railroad as a common carrier. In the cáse of Rose v. L., N. O. & T. Ry. Co., 70 Miss. 725, 12 South. 825, 35 Am. St. Rep. 686, appellant was a passenger. In the case of Krantz v. Railroad Co., 12 Utah, 104, 41 Pac. 717, 30 L. R. A. 297, appellant was a passenger, and the same is true in the cases of Railroad Co. v. Burke, 53 Miss. 200, 24 Am. Rep. 689, and Railroad Co. v. Minor, 69 Miss. 710, 11 South. 101, 16 L. R. A. 627. Affirmed.

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Concurrence in Part

McLean, J.

(dissenting and concurring).

The reporter will set out in full the declaration in this cause. The defendant demurred to the declaration, and, the demurrer being sustained, plaintiff declined to amend, and prosecuted this appeal.

It is urgently insisted by appellee that the declaration shows that the plaintiff went to the depot, not for the purpose of transacting business with the defendant, but on private 0 business with the agent of the defendant. It is true that the allegations of the pleadings are construed most strongly against the pleader, yet, when we examine the declaration as a whole, it is manifest that the plaintiff was at the depot for the purpose of transacting business with the defendant. Among other things the declaration alleges: ‘ ‘ There was a depot in the town of Star, Rankin county, Mississippi, where the plaintiff lived, and the said depot was in charge of the agent of the defendant, and under and by the laws the said agent at Star was conservator of the peace, and it was his duty to preserve the peace and to protect all persons coming to the depot to transact business with the defendant. . . . On or about this day the plaintiff went to the depot, at Star, of the defendant for the purpose of transacting business with the agent of the defendant.” It is not debatable but what the reasonable construction to put on this language is that the business to be transacted was not with the agent individually and on private business with the agent, but that the plaintiff went there for the purpose of transacting business with the defendant. If not, why did he say “for the purpose of transacting business, with the agent of the defendant?” The expression, “agent of the defendant,” must necessarily mean in the agent’s representative, and not in his individual, capacity. To allege that he went to transact business with the agent of the defendant is equivalent to saying that he went to transact business with the defendant through its agent. Further, when he went to transact business with the agent' of the defendant necessarily implies that he did not intend to transact business with him as principal, but with him as agent.

The insufficiency of the declaration is this: It fails to allege the kind and nature of the business that called plaintiff to the depot. It should specify such business as the deféndant under the law is required to perform, either by statute or common law. At first I was inclined to the opinion that the declaration under our statute was sufficient; but my brethren have convinced me otherwise, and I place my concurrence solely upon the ground that there is nothing in the declaration which discloses the particular business that called him to the depot. It may be that this business was such as required the defendant to protect him; but plaintiff should have set out this in the declaration. "We cannot assume that he went to the depot for the purpose of transacting any particular kind of business. The declaration does not so state, and the allegations are construed most strongly against the pleader.