State ex rel. Ellis v. Atlantic Coast Line Railroad, 53 Fla. 711

State ex rel. Ellis v. Atlantic Coast Line Railroad

53 Fla. 711 | Fla. | 1907

VfniTPiEUD, J.:

The alternative writ alleges that the respondent has allowed and is allowing its roadbed and LuG: †.> run lown, f :t:riorate and become unfit and an-*729suitable for the proper movement of its equipment thereon and the transportation of freight and passengers there-over ; that the said roadbed and tracks on said main line, in their present condition, are and constitute a danger and a menace to the lives and limbs of the passengers on said railroad, and the freight transported thereover; that said roadbed has an uneven and irregular surface; a large per-' c ntage of the crossties under the rails are rotten and wholly incapable of supporting the rails with the weight of an empty car thereon, at divers places along the said main lines of railroad and for great distances, the iron spikes which are driven into the crossties to support the rails can be lifted from the crossties with the naked hand; that many of the angle bars or plates on the main lines, and bolts used in the same are broken, and that in many cases the angle plates are not fastened to the rails with the requisite number of bolts.

Upon the last motion to quash the alternative writ in this cause the court held that “when a reasonably suitable, safe and sufficient roadbed and track and accompanying appurtenances are furnished and maintained so as to meet the reasonably just requirements of the public service, the huv in that regard is satisfied;” and required an amendment to the writ “so that it shall generally require the respondent to put and maintain its roadbed and track along its main lines in a reasonably safe and suitable condition reasonably adequate to meet the requirements of the public service it has undertaken to perform, by replacing all decayed orossties with sound ones of such material and of such dimensions as will be reasonably adequate to the demands of the public service to be performed on such roadbed and track, and by replacing and properly securing *730all defective, broken and missing angle bars or rail connections with sound ones, and by adequately spiking its rails to its crossties, and by putting the surface of its roadbed along said mentioned main lines in- a reasonably safe and adequate state of evenness and smoothness.”

The second amended alternative writ requires, and it is proper that it should require, the replacing of all decayed crossties with sound ones, and the replacing and properly securing all defective, broken and missing angle bars or rail connections with sound ones, and the doing of other things commanded, to the extent of putting and maintaining the roadbed and track in a reasonably suitable and safe condition to meet the just requirements of the public service. The command of the writ should be construed as designed to accomplish this-end.

Matters of inducement stated in the writ, when replied to by the respondent, should be either admitted, denied or confessed and avoided. Immaterial, irrelevant or argumentative matter should not be included in an answer to an alternative writ of mandamus.

It was argued at the bar for the respondent that demurrer is the proper remedy for .the relator to invoke in testing the propriety -of the answer on idle grounds stated in the motion to strike.

If the answer to an alternative writ of mandamus is responsive to the allegations of the writ, but is wholly insufficient as a pleading, a demurrer will lie. If the answer is wholly irrelevant or improper, and impedes a fair trial of the cause, it may be stricken on motion; and any irrelevant, immaterial or otherwise improper matters stated in an answer may be stricken on motion. A demurrer goes to the pleading as a whole for insufficiency; while a mo*731tion to strike is applicable where the pleading ás a whole or any part of it is irrelevant or improper and impedes a fair trial. See section 1433 Gen. Stats, of 1906; State ex rel. v. Saxon, 25 Fla. 342, 5 South. Rep. 801; Wefel v. Stillman (Ala.), 44 South. Rep. 203.

The answer in this case contains positive denials and other averments that are responsive to the material allegations of the alternative writ; therefore the motion to strike the entire answer is not well taken.

The motion to strike portions of the answer points out matters contained in the answer that are not responsive to the allegations of the alternative writ. Some of such matters are irrelevant, others are argumentative or otherwise infringe the rules of pleading.

On the motion to quash the first amended alternative writ in this cause and to strike portions of the writ, it was held that the allegations of the writ as to lands granted by the state to the several companies which were merged into the respondent company are not wholly irrelevant to the duties and obligations of the respondent involved here, and that, consequently, such allegations would not be stricken. The averments contained in the second, third, fourth and fifth paragraphs of the answer that the respondent “has no personal knowledge of said allegations, and same are immaterial if true,” are not responsive to allegations of the writ held to be not wholly irrelevant, and seek to raise a question of materiality of allegations of the writ, which, question was disposed of on the former motion.

The denial in the sixth paragraph of the answer that the respsondent received from any of the constituent companies any part or portions of the lands granted is coupled *732with the expression, “if any such were granted to them by the state of Florida.” The denial is thus made a portion of an averment which refers to- but neither admits nor denies an allegation of the writ as to land grants to the constituent companies. ,

Inasmuch as the attorney general in the oral argument upon this motion insisted that the writ does not charge that the respondent itself received any of the land grants mentioned, and no real effort has been- made in the return to deny that the subsidiary companies did receive land grants, we see no useful purpose to be subserved by permitting an amendment on this point, and it will no longer be treated as an issue in the cause.

The denial appearing in brackets in the latter part of the sixth paragraph of the answer, that the officers, agents, employees and -servants of the respondent have, since October 1st, 1905, failed to keep and maintain a suitable roadbed and track along the main lines of the railroad mentioned in the writ, is responsive to an allegation of the writ.

The averments contained in brackets in the seventh paragraph of the answer include matters that are immaterial or argumentative, but some, portions thereof are responsive to the allegations of the writ.

Though not precisely stated these averments admit that casualties have occurred, but deny that they were attributable to or caused by the negligence of the respondent in the maintenance of its track and roadbed in a reasonably safe and suitable condition; admit that there is on portions of the lines an uneven and occasionally an irregu’ar track, but says it is not attributable to negligence in the maintenance thereof; avers that at no point along *733the lines of railroad are any proportion of the crossties under said rails decayed to such an extent as to render said track or roadbed unsafe for the purpose of transporting freight and passengers; denies that there are any appreciable number of angle bars or plates or bolts on its lines of road broken, and certainly not such a number thereof to in any way render its track and roadbed unsafe. These averments are responsive to allegations, of the writ.

The averments contained in parentheses as they appear in the writ are not responsive to the allegations of the alternative writ. Some of the averments are argumentative or irrelevant and immaterial, while others assert matters relating to the duties of the respondent not proper in an answer and not in accord with the previous decisions of this court in this cause.

All the averments contained within parentheses as appears by the answer as given in the statement to this opinion are stricken.

As the answer contains sufficient averments responsive to the material allegations of the alternative writ, and as it is proper that the disposition of this cause should not be further delayed, any joinder of issue made by the relator will be confined to the issues tendered by the responsive and material averments of the answer, and the parties will proceed to the presentation of testimony upon material issues.

The motion to strike the entire answer to the alternative writ is.denied. The motion to strike portions of the answer is granted in the particulars indicated in this opinion. The relator is allowed five days to join issue, where*734upon appropriate orders will be made for taking testimony.

Shackleford, C. J., Taylor, Cockrell, Hocker and Parkhill, JJ., concur.