75 Ark. 64 | Ark. | 1905
(after stating the facts.) The complaint failed to state a cause of action' for failure to furnish cars, for the reasons mentioned by St. Louis, I. M. & S. Ry. Co. v. CarlLee, 69 Ark. 584. But the latter part of the complaint, towit: — “That said company negligently failed to furnish car aforesaid; that this plaintiff loaded the said bolts in the car that had been ordered by some one else, and, after the said bolts were loaded, the car was negligently permitted to stand upon the sidetrack for the period of five days thereafter; plaintiff states that by reason of negligence of the defendant aforesaid in failing to furnish the car aforesaid, and in delaying of shipment of the said bolts, the said bolts deteriorated in value to his great damage in the sum of $50”' — taken in connection with the first part, states a cause of action for negligent delay in shipping appellee’s goods. For it may be fairly gathered from this part of the complaint that appellee, after failing to get the car he had requested, loaded his head bolts on another car (one “that had been ordered by some one else”) and that, after the bolts had been loaded on appellant’s car, appellant negligently delayed their shipment for five days, and that by reason of such negligent delay in shipment appellee was damaged, etc. It is true the complaint does not charge specifically that the appellant received the bolts for shipment, and negligently delayed for five days to ship same, and thereafter did ship same. But this is the reasonable and fair inference from the language úsed. The complaint, to be sure, was clumsy and defective as a statement of a cause of action for the negligent delay in shipment of appellee’s head bolts, but the liberal rules of pleading under our reform procedure require that such defects be remedied by motion, and not demurrer, since a cause of action was stated. In Bush v. Cella, 52 Ark. 378, it is held (quoting the syllabus) that “although the material allegations of a pleading are ambiguous and uncertain, if the inference may be drawn therefrom, by a fair intendment, that facts exist sufficient to constitute a cause of action or ground of defense, the defect must be corrected by a motion to make more definite and certain, and not by demurrer.”
The judgment is affirmed.
