Brown v. Mississippi Cent. R. Co.
| Decision Date | 27 September 1926 |
| Docket Number | 25527 |
| Citation | 144 Miss. 326,109 So. 796 |
| Court | Mississippi Supreme Court |
| Parties | BROWN v. MISSISSIPPI CENT. R. CO. et al. [*] |
Suggestion of Error Overruled Oct. 25, 1926.
APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.
Action by C. H. Brown against the Mississippi Central Railroad Company and another. From judgment sustaining demurrers to declaration, plaintiff appeals. Reversed and remanded.
Judgment reversed and case remanded. Suggestion of error overruled.
Currie & Currie, for appellant.
I. The sole question is: Does the declaration contain sufficient matter of substance for the court to proceed upon the merits of the cause? See section 512, Hemingway's Code (section 729, Code of 1906); Lamkin v. Nye, 43 Miss. 241; Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007; Evans v. Miller, 58 Miss. 120; Alliance Trust Co. v Nettleton Hardwood Co., 21 So. 396.
The rule is established and requires the citation of no authority that every fact well pleaded is admitted by a demurrer. The declaration in this case charges both by direct and affirmative allegations and in substance as a whole, that the trains of both of these railroad companies were on the spot in head-on collisions, due to the unlawful, willful and malicious conduct and acts of both of them at the time of the wreck of the train whereon the appellant was a passenger; and that the agents and servants of both of said railroad companies in charge of and operating their respective trains were on the ground at the time, engaged in a spirited and heated conflict for the supremacy, control and use of said track; and that the appellant received his injuries as a proximate and direct result thereof.
The facts are clearly pleaded in the declaration. The charges are clear, specific and direct. To read the declaration is to be fully informed as to the exact nature and character of the acts complained of and it is perfectly manifest that if the facts thus pleaded be true, there can be no question of the liability of both of these defendants.
The declaration in this case sounds in tort against both of the defendants. For definitions of "tort" applicable here, see: Galveston, H. & S. A. Ry. Co. v. Hennigan (Tex.), 76 S.W. 452, 453; Bigby v U.S. 23 S.Ct. 468, 188 U.S. 400, 47 L.Ed. 519, Pollock, "Torts," 1, 19; Western Union Tel Co. v. Ford, 70 S.E. 65, 8 Ga.App. 514; Welborn v. Dixon, 49 S.E. 232, 70 S.C. 108, 3 Ann. Cas. 407, 26 Enc. of Law (1 Ed.), 72; Andrews Stephen's Pleading, 107; Wolff v. Southern Ry. Co., 60 S.E. 569, 571, 1300 Ga. 251, citing L. & N. Ry. Co. v. Spinks, 30 S.E. 968, 104 Ga. 692; Milledgeville Water Co. v. Fowler, 58 S.E. 643, 129 Ga. 11; Black's Law Dictionary 1891, p. 1178.
There was in this case (1) a direct invasion of the legal rights of the appellant; (2) the infraction of public duty by both of the appellees; and the appellant as a proximate and direct result sustained damages for which both of the appellees are liable under the law.
The declaration in this case charged each and both of these railroad companies with the willful and malicious obstruction of these railroad tracks resulting directly and proximately in the injury of the appellant. Section 1075, Hemingway's Code (section 1341, Code of 1906); Section 1079, Hemingway's Code (section 1345, Code of 1906).
It is possible under the law as it is written for these two railroad companies to escape joint liability to the appellant in this case, under the allegations of the declaration, on the ground or theory that the action sounds ex contractu and not ex delicto.
It is purely an action in tort and under the allegations of the declaration the appellees are clearly jointly liable and there is no legal escape for them.
II. There was no misjoinder of defendants. The agents and servants of both of these railroad companies were there on the ground at the time, each resisting the use of this track by the other. It was a violation of the law and gross negligence on the part of both of these railroad companies that then and there caused the derailment and wreck of the train which produced, proximately and directly, the injuries to the appellant.
The wrecking of this train with the consequent injuries to appellant was the proximate and direct result of the concurring and concurrent acts and conduct of these two railroad companies and their agents and servants then and there on the ground and in charge of and operating the trains of these companies. The declaration plainly so charges. Chicago, R. I. & Pac. R. R. Co. v. Durand, 65 Kan. 380, 69 P. 356; Sternfels v. Metropolitan Street Ry. Co., 73 A.D. 494, 77 N.Y.S. 309, which was affirmed in 174 N.Y. 512, 66 N.E. 1117; Abb v. N. P. Ry. Co., 28 Wash. 428, 68 P. 954, 58 L. R. A. 293, 92 A. S. R. 864; Field v. Spokane, Portland, etc., R. R. Co., 64 Wash. 445, 117 P. 228; Matthews v. Delaware, L. & W. R. R. Co., 56 N.J.L. 34, 27 A. 919, 22 L. R. A. 261; Tompkins v. Clay St. Hill Ry. Co. et al., 66 Cal. 163, 4 P. 1165; Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578, 6 S.W. 441, 9, A. S. R. 309; Cuddy v. Horn, 46 Mich. 596, 10 N.W. 32, 41 Am. Rep. 179; Carterville v. Cook, 129 Ill. 152, 22 N.E. 14, 4 L. R. A. 721, 16 A. S. R. 248; McDonald v. Louisville & C. R. R. Co., 47 La. Ann. 1440, 17 So. 873; Stone v. Dickinson, 87 Mass. (5 Allen) 29; Northup et al. v. Eakes et al. (Okla), 178 P. 266.
That the willful, malicious and unlawful acts and conduct of both of these appellees charged in the declaration, concurred in causing the derailment and wreck of the train and the consequent injury and damage to the appellant is too plain for discussion or doubt.
It has been held so many times by this court that different persons whose acts of negligence concur in producing an injury to a third person may be jointly sued. Sawmill Construction Co. v. Bright, Broght v. Finkbine Lumber Co., 77 So. 316; Waterman-Fouke Lbr. Co. v. Miles, 99 So. 759.
III. There was no misjoinder of causes of action. The contentions of the demurrants in the courts below, in the argument of these demurrers, was that because the appellant purchased a ticket from the Mississippi Central Railroad Company, his action against that company necessarily sounded in contract, and that because the Bonhomie & Hattiesburg Southern derailed and wrecked the train of the Mississippi Central Railroad Company whereon it was undertaking to carry its passengers, the appellant's action against the Bonhomie & Hattiesburg Southern necessarily sounded in tort, and that the two could not be joined. The authorities already cited are called to the attention of the court in its consideration of this question as they completely demolish this contention.
IV. The demurrants further contended that the damages sued for were too remote and that the measure of liability was not the same as to both of the appellees.
The elements of the damages sued for are (1) compensation for personal injuries inflicted upon the appellant; (2) compensation for the loss of permanent employment; (3) recovery of necessary expenses laid out as a proximate and direct result of the unlawful, willful and malicious acts and conduct of the appellees.
We assert that under the allegations of the declaration in this case and upon the law of this land applicable to the same that each and both of the appellees are liable to the appellant for all three of these elements of damage. 38 Cyc. 487; Central of Georgia Ry. Co. v. Brown, 113 Ga. 414; Hawkesworth v. Thompson, 98 Mass. 77; 38 Cyc., p. 490.
The unlawful, willful and malicious acts and conduct of both of the appellees complained of in the declaration were unlawful (1) inherently, (2) at common law, (3) by statute in this state. Scott v. Shepherd, reported in Law Library-Putney, Vol. 4, Torts, Damages, Domestic Relations, p. 24--the "Squib" case. The court held in this famous case, "That wherever a man does an unlawful act, he is answerable for all of the consequences."
Such is the law in the United States and in the state of Mississippi to-day. Such is the law in every English speaking country where the common law and the common-law practice prevails.
Hannah & Simrall, for appellee, Mississippi Central Railroad Company.
Did the court err in sustaining the demurrers to the plaintiff's declaration? The greater part of the declaration, as well as the greater part of counsel's extended brief, may be disregarded insofar as this case is concerned because it is, wholly irrelevant and without merit.
The declaration wholly and utterly fails to show that the antagonisms between the two railroad companies, appellees here, had anything whatever to do with the plaintiff's injury. If they were violating the criminal statutes of Mississippi as alleged in appellant's declaration and brief, his recourse is in the criminal court and not here.
Section 52, Hemingway's Code, provides that: "The declaration shall contain a statement of the facts constituting the 'cause of action.'" The fault with appellant's declaration is that it undertakes to state the facts constituting many actions: (a) A cause of action against the Mississippi Central Railroad Company on account of breach of contract resulting in the loss of a position; (b) a cause of action against the Mississippi Central Railroad Company because of breach of contract resulting in personal injury to the appellants; (c) a cause of action against the Mississippi Central Railroad Company in tort resulting in plaintiff losing a position; (d) a cause of action against the Mississippi Central Railroad Company in tort resulting in personal injury to the appellant; (e) a cause of action against the Bonhomie & Hattiesburg Southern Railroad Company in tort resulting in loss of a contract of employment with appella...
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