Evans v. Douglas

• Decision Date: 24 February 1908
• Docket Number: (No. 241.)
• Citation: 60 S.E. 485,3 Ga.App. 665
• Parties: PENNINGTON & EVANS . v. DOUGLAS, A. & G. RY. CO.
• Court: Georgia Court of Appeals

60 S.E. 485

3 Ga.App. 665

PENNINGTON & EVANS .

v.DOUGLAS, A. & G. RY. CO.

(No. 241.)

Court of Appeals of Georgia.

Feb. 24, 1908.

1. Writ of Error—Presumptions—Grounds of Decision—Pleading—Demurrer—Good in Part.

When a demurrer containing several grounds (some of the grounds being directed to the merits and some special in their nature) is sustained, and the petition is dismissed, there is no presumption that the ruling was based upon the special grounds of the demurrer, rather than upon the general; but the judgment will be treated as sustaining the demurrer as a whole and upon all of the grounds therein contained, and the judgment of dismissal will be affirmed, if this judgment was right for any reason which was presented by the general demurrer. No reference is here made to the power of this court to give direction as to amendment in connection with the judgment in such a case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3706-3708.]

2. Action—Nature and Form.

The nature of an action is not determined by the designation of the pleader. "It is in fact immaterial by what name he calls his suit, or whether he gives it any name at all." The character and classification of an action depend upon the intrinsic contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the quality of the remedy invoked.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Action, §§ 85, 94, 216.]

3. Carriers — Carriage of Goods—Statutory Duty to Furnish Cars—Exclusion of Other Remedies.

The remedy provided in the act approved August 23, 1900 (Acts 1905, p. 120), entitled "An act to further extend the powers of the Railroad Commission of this state, and to confer upon the commission the power to regulate the time and manner within which the several railroads in this state shall receive, receipt for, forward and deliver to its destination all freights of every character, which may be tendered or received by them for transportation; to provide a penalty for noncompliance with any and all reasonable rules, regulations and orders prescribed by the said commission in the execution of these powers, and for other purposes, " is exclusive of any other mode of procedure for the collection of damages arising from a breach of the carrier's public duty to furnish cars for the transportation of freight.

(Syllabus by the Court.)

Error from City Court of Nashville; H. B. Peeples, Judge.

Action by Pennington & Evans against the Douglas, Augusta & Gulf Railway Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Hendricks, Smith & Christian and Spencer R. Atkinson, for plaintiff in error.

J. W. Quincy and Wm. H. Barrett, for defendant in error.

RUSSELL, J. Pennington & Evans brought an action for damages against the Douglas, Augusta & Gulf Railway Company for $23,-304, which was dismissed upon demurrer, and the order of the judge of the city court sustaining the defendant's demurrer is the error assigned. The demurrer was predicated upon several grounds, and was sustained generally. It appears that the plaintiffs in error, as plaintiffs in the court below, insisted that their suit was one for damages, that it was not drawn to recover a penalty, and that they disclaimed any right to recover for any penalty whatever; and the same insistence was maintained before us. The plaintiffs in the court below stated that it was not their intention at the time of the filing of their petition to contend for any penalty, and they further stated that they would not, upon the trial of the case, ask for any penalty, but would ask only for such damages, caused by the negligence of the defendant in its failure to furnish cars to plaintiffs, as they might be able to sustain by proof.

The plaintiffs' petition, as appears from the bill of exceptions (in which it is incorporated), alleges that the defendant is a corporation with a line of railway extending through the county of Berrien, with an agent and office therein; that the defendant owns and operates a railroad for the purpose' of hire, and for the transportation of all manner of freights usually hauled by railroad companies by the method of drawing flats and box cars over said railroad; that said railway company is under the Railroad Commission of the state, and is amenable to its rules, orders, and regulations; that the plaintiffs are mill operators, with their sawmills located in Berrien county, at a place known as Barfield, Ga., and are wholly dependent upon said defendant railway company for cars and equipage for the purpose of transporting their lumber to their purchasers and customers; that on the 1st day of May, 1906, the plaintiffs made requisition on the defendant for five flat cars, as provided by law and as prescribed by rule 9 of the rules of the Railroad Commission of Georgia, promulgated and published at Savannah, Ga., on April 6, 1906 (a copy of which requisition is attached to the petition as Exhibit A), and that the said railway company made default, in that it only furnished two cars; that requisitions for cars were made from the 1st of May until the 27th of June, 1906, in accordance with the said rule of the Railroad Commission of Georgia, except that said requisitions would designate whether the cars were to be boxes or flats, and the persons to whom, and the place where, and the kind of lumber with which, they were to be loaded, all of which cars the defendant refused and failed to fur-nish; that the plaintiffs made requisitions upon the railway company, as above set forth, for 594 cars, in accordance with rule 9 of the Railroad Commission of Georgia, which said amount of cars the railroad company failed and refused to furnish, and, after allowing the time within which to furnish said cars as prescribed by the aforesaid rule, the plaintiffs were without the use of the said 594 cars for 23, 304 days, for which they were damaged the sum of $1 per day for each car and for each day, their damage sustained thereby being the said sum of $23,304; that on the 21st day of July the plaintiffs served the defendant, as provided by law, with the number of cars asked for in each of the several requisitions made upon the defendant, from the 1st of May to the 27th of June, 1906, giving the character of the cars, whether box or flat, the amount of cars received on each order, and the kind of cars, the month and day received, and the number of cars short on each requisition, and the number of days each car was in default, thereby giving the 30 days' notice required by law before bringing this suit against the company, and that said defendant has failed and refused to pay the amount of damage sustained by reason of its negligent acts in failing and refusing to furnish cars as per the terms of the requisitions made upon it; that the defaults in the various requisitions made upon the defendant by the plaintiffs were without the consent, fault, or neglect of the plaintiffs, and to their injury and damage in the sum aforesaid. Exhibit A, attached to the petition, was in the following terms: "Supt. Holtzendorf, Douglas, Ga.—Dear Sir: We are loading our last empty flat to Brunswick, and will be ready to go forward to-morrow, and we need more at once for loading to Brunswick with lumber. Please place at our siding at once five empty flats that can be loaded with Brunswick loading. Thanking you in advance for cars, we are, yours very truly, Pennington & Evans."

The defendant, expressly insisting on its plea filed to the jurisdiction of the court, demurred to the petition as follows: "First Because the right of action of plaintiffs accrued in the county court of Coffee, which is without the jurisdiction of the court. Second. Because no cause of action is set out in the petition. Third. Because the petition is duplicitous, in that it includes in one count an action in tort for alleged negligence and an action to recover penalty under an alleged statute and a rule of the Railroad Commission of Georgia. Fourth Because said petition fails to set out rule 9 of said Railroad Commission. Fifth. Because the petition fails to set forth the written notices alleged to have been served. Sixth. Because the notices alleged to have been served upon defendant are not in compliance with said alleged rule of said commission. Seventh. Because said petition fails to allege that defendant had been required to show cause before the Railroad Commission of Georgia as to the penalty sought to be recovered in this suit, or that defendant has failed to show sufficient cause before the commission why it should not be relieved from the liabilities sought to be enforced. * * * Tenth. Because the petition fails to allege that all the ears called for were necessary to the plaintiffs, or how many cars were necessary for the proper conduct of plaintiffs' business."

Upon consideration of the demurrer the court sustained it as a whole, and dismissed plaintiffs' petition. Exception is taken by bill of exceptions to this judgment. The judgment of the court was general. "Upon considering the within and foregoing demurrer, and after argument of counsel had thereon, it is considered, ordered, and adjudged by the court that said demurrer be, and the same is hereby, sustained, and the petition in said case is hereby dismissed." The demurrer contains both general and special demurrers. The alleged defect pointed out by the special demurrers, perhaps, might have been remedied by amendment; but it does not appear that any amendments to the petition were offered.

1. For reasons which we shall presently state it is immaterial what reason, suggested by the demurrer, may have controlled the lower court in the rendition of its judgment, and it is profitless to consider the several grounds of the demurrer seriatim for the purpose of pointing out their characteristics and the proper legal effect of each upon the plaintiffs' petition. As pointed out by Judge Erskine in Martin v. Bartow...