Keystone Lumber Yard v. Yazoo & Mississippi Valley Railroad , 94 Miss. 192 ( 1908 )

Whiteield, O. J!,

delivered the opinion of the court.

The declaration in this case is decidedly ambiguous as to what it means to count upon, whether the common-law liability, or the liability arising under that .part of rule ten of the demurrage and delay rules, adopted by the railroad commission June 8, 1904, effective June 18, 1904, in which it is provided as follows. “Likewise where cars are detained in transit by being switched to some track between point of shipment and destination, one dollar per car will be charged for each day or fraction of a day of delay thus caused, and no free time in such cases be allowed.” If there were nothing before us but the declaration itself, excluding the exhibits, then manifestly a demurrer predicated on the ground that such declaration contained two antagonistic clauses in one count—the whole declaration consisting merely of that one count—should be sustained on the authority of Illinois, etc., R. Co. v. Abrams, 84 Miss. 456, 36 South. 542. But the demurrer in this case does not present that ground, as we think, with sufficient clearness. There is certainly no ground of demurrer that can be said to present it, clearly or otherwise, unless it be the first ground, which may be called “the general welfare clause” of the demurrer, h> wit, that “no cause of action is stated in said declaration.” But, in addition to this want of clear presentation to the court belo.w of this point, it is made manifest, through the whole course of the trial below and here, especially by the briefs on both sides, that no such ground for demurrer was presented to the court below, or passed on by the court below; and if we were to sustain the demurrer on this ground, .we, an appellate court, would be sustaining the demurrer on a ground not passed on by the court below at all. We do not think this is fair to the court below.

But, turning now from this view of the question, considered by itself alone, we are bound to treat the declaration as if the exhibits were all set out on the face of the declaration. So, looking at the declaration, it is plain that the declaration, very inartificially drawn, if it intended to count on the violation of this rule ten alone, nowhere alleges that the delay was caused, in the language of that part of rule ten above quoted, “by cars being detained in transit, by being switched to some track between point of shipment and destination;” in other words, from all that appears from the declaration, aided by the exhibit, the suit may have been for a mere general delay, and not for the specific delay mentioned as arising from sidetracking cars in transit. If this last is the cause of action meant to have been counted upon, it was the easiest possible thing for the pleader to have so stated in the declaration; and since he did not so state, and since the pleading must be viewed on demurrer most strongly against the pleader, .we think the demurrer was properly sustained on this ground alone. But we also think that the justice of this cause requires, in view of the course of the trial in the court below and here, that this cause should be remanded, with leave to amend pleadings so as to present the real ground relied on. Indeed, the chief object of this suit seems to have been to test the constitutionality of paragraph four, of rule ten, above set out, and also to determine the question whether the right of suit conferred by this paragraph can be availed of by the consignee. This last question was settled by the principles announced in Yazoo, etc., R. Co. v. Keystone Lumber Co., 90 Miss. 391, 43 South. 605. We reaffirm, in their full extent, the principles announced in that decision, and those principles make it perfectly clear that this paragraph four of rule ten did embrace the right of- action by a consignee in the case stated, or attempted to be stated, in this declaration, viewed as with exhibits attached.

It is said in the briefs for appellants, and it seems to he agreed "to in the brief for appellees, that the court below held on this demurrer that this paragraph four of rule ten was not applicable To the case made by the declaration, because the consignee could not avail himself of said paragraph. If this was what was held by the court below, it was clearly error. We therefore hold, in this case, that paragraph four of section ten does embrace the 'consignee; but we further hold that the action of the court below was correct in sustaining this demurrer on the sole ground 'that the'declaration does not aver that the delay sued for was -delay caused by sidetracking the cars in transit between the point •of shipment and destination. In view of the very confused state of the ease, as presented by the declaration, and also in ■view of the failure on the part of the defendant to put its ground •of demurrer clearly on the point we have indicated, and in view, also, as above stated, of the whole course of the trial below and here, it would certainly be unfair to the court below, as well as •to. the plaintiff, to deal with the demurrer as presenting , to the court below a ground not argued there or here and not clearly .presented by the demurrer.

For this reason, the judgment of the court below in sustaining the demurrer is affirmed, solely on the ground above indicated; but the action of the court below in dismissing the suit is reversed, and the cause remanded with leave to both parties to plead further, as they may be advised.

Reversed.