57 So. 626 | Miss. | 1911
Lead Opinion
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 fore
. 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
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 super
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
Concurrence in Part
(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
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.