Brown v. Mississippi Cent. R. , 144 Miss. 326 ( 1926 )

ON SUGGESTION OF ERROR. Each of the defendants filed a suggestion of error to the former opinion in this case. Each insisted that the declaration did not state a cause of action against the Bonhomie Hattiesburg Southern Railroad Company. As stated in the former opinion, the declaration is crudely and inartistically drawn, but we think that it does state a cause of action against each of the railroads involved. It is alleged in the declaration that the Mississippi Central Railroad had operated its trains over this line of road from Hattiesburg to Mobile under some arrangement with the Gulf, Mobile Northern Railroad which owned the track in question under some arrangement between that Road and the Mississippi Central Road. It alleges that litigation was pending over the right of the Mississippi Central to so use it at the time of the injury alleged in the declaration. It is further alleged that the line of the Mississippi Central was connected with this other line by a connecting track. It must be taken to be true that the arrangement was approved by the Interstate Commerce Commission, or that it was lawful for it to so use it, and that either expressly or tacitly the Interstate Commerce Commission had approved the arrangement.

It is further alleged that this track was nailed or spiked down so as to prevent this connection, and that both roads, that is, both defendants, were undertaking, in violation of law and the rights of the complainant, to operate their trains over this line, in opposite directions, in a manner calculated to inflict injury.

The case of A. V.R.R. Co. v. Jackson Eastern R.R. Co.,136 Miss. 726, 101 So. 553, referred to in the suggestion of error, is not applicable here, because in that case no physical connection had been made theretofore, and no trains had been operated from one line onto the other, whereas in this case the declaration shows that the Mississippi Central had operated its trains over this line under an arrangement so to do, and that litigation was pending in the courts to settle whether or not it had the right so to do. When rights are being litigated in the courts, it is not proper, but is unlawful and grossly improper, to undertake to resort to physical force to assert rights.

It is error to assume that a railroad which is affected with the public interest stands in the same situation as a private individual or private corporation unaffected by public interest to do as it pleases with its property. It certainly would be a novel doctrine to hold that, where two railroads had contracted, and had litigation to determine the effect of their contract, one could sever the connection of connecting tracks, and use force to prevent their being used by the other who claimed rights under the contract and was seeking to enforce those rights in court.

If the facts of their respective intendments as set forth in the declaration are true, it is manifest that the plaintiff had a right of action against each of the roads. Section 512, Hemingway's Code (section 729, Code of 1906) provides:

"The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contain sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient; and it shall not be an objection to maintaining any action that the form thereof should have been different."

It is true that, where a pleading is doubtful, or where it is susceptible of two constructions, the court will construe it most strongly against the pleader, and it is also true that attorneys drafting pleadings should be careful and painstaking in getting the facts before the court in appropriate legal language, but the section above referred to imposes upon the court the duty of proceeding with the cause and giving appropriate relief, if the facts state a cause of action, and this whether the declaration be skillfully drawn or not. We must give effect to the pleading where it contains sufficient matter to state a cause of action, and we think the declaration here states the cause of action as against each of the defendants.

Suggestion of error overruled.