Dunlap v. Chicago, M. & St. P. Ry. Co.

SMITH, J.

(Concurring specialty). I concur in -that part of the majority opinion which says: “We think that the complaint sets forth but one cause of action and that based upon contract,” but I find it difficult to accept the further statement that “into such contract thus alleged, there became incorporated- all the provisions of section 4 supra, relating to the duties of the defendant railroad, and defendant became fully bounden thereby -to the same extent as though such provisions had been included within the express terms of a contract.” -Chapter 207, Laws of 1911, of which -section 4 forms a part, is entitled “An Act to regulate common carriers and to define die powers and duties of the board of railroad commissioners of the state of South Dakota in relation thereto, and imposing -penalties for the violation of the provisions of this -act.” - Section 4 creates a duty on the part o-f the common carrier to receive and transport such freight “with reasonable -dispatch.” I quote only .this portion- of the section, among those creating -duties on the part of carriers toward shippers and the public, for the reason that it is the provision pertinent to .the particular matter to which I desire to direct attention.

The duties of common carriers are also defined by section 1578, Civil Code, which declares: “A common carrier must, if able to do so, accept and carry whatever is offered to him, at a reasonable time and place, of a kind that he undertakes or-is accustomed to carry.” Section 1-597, Civil Code says: “A -common carrier is liable for delay only when it is caused by his want of ordinary care and diligence.”

Here then we have two provisions of law, sections 4 and 12 .of the act of 1911, and sections 1578 and 1597 of the Civil Code, both of which purport to define the duties and liabilities of common carriers. Which of these provisions is it that is “included w-ithin” the express terms of the special contract?- The majority opinion says it is section 4 of the act of 1911, but I can see no particular reason for -the conclusion. If either of these statutes became part of the special contract, I confess my inability -to determine which of the two it is. It occurs to me that a conclusion resting upon a process of reasoning erected u-pon a foundation so uncertain is not wholly reliable. It seems necessary, however, that the majority opinion should hold and assume that section 4 became incorporated into the contract, in order to reach the conclusion that a recovery of the statutory .penalty may be had- under section 12. I am of opinion that the complaint, while sufficient upon demurrer to sustain a recovery for breach of -the special contract alleged, does not state a -cause -of action under section 4. If it be conceded that some statutory liability enters into and becomes a part of this contract, I think, under the allegations of the complaint, it could only be that defined by section 1597 of the Civil Code, which says: “A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence.” The complaint is apparently framed and intended to cover this statute. The majority opinion say-s: “The clear import of the allegations — the inference to be drawn therefrom- — is' a charge that the defendant was guilty of unreasonable delay in such shipment.” * * * I cannot -draw any such inference from the statements in the complaint. The allegation of the complaint is that defendant “wrongfully and negligently failed and refused to transport said .turkeys so loaded at Newark, S- D. * * * until on or about Nov. 23, 1911.” The complaint further alleges, as a statement of fact upon which the ultimate fact of negligence rests, ■that the car was placed on the track “on or about” November 17, and that “thereupon” plaintiff loaded the car. What day was the the car loaded? The further allegation of fact is that the defendant failed and refused to transport until “on or about” November 23d. “On or about” November 17th, would sustain proof that the car was placed on the track at any time between November 17th and November 23d. The allegation that the defendant failed to transport said freight until “on or about” November 23 d would be sustained by proof that the car was actualfy moved before the 23 d. It is upon these wholly equivocal and uncertain allegations that the majority opinion founds its conclusion that the corn-plaint alleges that the defendant did not use ordinary care and diligence, or that it did not transport such freight “with reasonable dispatch.” It seems -o- me that such conclusion does violence ■to all the known rules of pleading. The Code requires a plain and concise statement of the -facts, and if any conclusion is to be drawn from the dates, it seems to me entirely clear that such dates must be specific and certain. The construction given these allegations, in my judgment, extends an extreme indulgence to the pleader, and is not warranted by those provisions of the Code, which require at least a statement of facts from which an ultimate conclusion of negligence may be drawn.

As shown by these allegations, the period of time during which the defendant failed to transport the freight, is wholly indefinite and uncertain and such allegations- are insufficient from which to draw the conclusion of negligence, as is done by the majority opinion. Under -section 1597 of the Civil Code, a recovery may be had for delay arising from “want of ordinary care and diligence.” The gist of such an action is negligence, the ground of recovery alleged in this complaint. The complaint does not allege that the carrier failed to transport -the freight with “reasonable dispatch.” Under section- 1597, supra, a failure to transport freight with reasonable -dispatch, is not actionable unless occasioned by “want of ordinary care.” I think the complaint states a. cause of action for the breach of the special contract alleged, but that it fails to state a cause of action under either of the two. statutes referred to. For these reasons, I concur in the conclusion of the majority opinion, except as to that portion which holds that under this complaint the penalty prescribed by section 12, chap. 207, Laws of 1911, is recoverable.

McCOY, J., concurs in the views expressed by SMITH, J.