State v. Seaboard Air Line Ry.
| Decision Date | 24 November 1908 |
| Citation | 47 So. 986,56 Fla. 670 |
| Parties | STATE v. SEABOARD AIR LINE RY. |
| Court | Florida Supreme Court |
Headnotes Filed December 11, 1908.
In Banc. Error to Circuit Court, Orange County; Minor S. Jones Judge.
Action by the Railroad Commissioners, in the name of the State against the Seaboard Air Line Railway. Judgment for defendant, and plaintiff brings error. Reversed, with
Syllabus by the Court
The object of section 1449 of the General Statutes of 1906 and rule 14 (18 South. vii) of circuit court rules in common-law actions in requiring the cause of action, or a copy thereof in the class of instruments designated therein, to be filed with the declaration, is to have the plaintiff apprise the defendant of the nature and extent of the cause of action alleged against him, in order that he may plead thereto with greater certainty. Ordinarily such cause of action forms no part of the declaration, and cannot be reached by demurrer and neither can the failure of the plaintiff to file the same be taken advantage of by demurrer.
By apt words the cause of action, or a copy thereof, filed with the declaration, can be made a part of the same, and when both parties to the action, as well as the court below, have treated the cause of action as being properly a part of the declaration which can be reached by demurrer, an appellate court may likewise so treat it, but, in such a case, a demurrer interposed to the declaration must be considered as being addressed to the entire declaration, of which such cause of action forms a part.
Where allegations of a declaration containing only one count are repugnant to and inconsistent with each other, such allegations neutralize each other, and the declaration will be held bad on demurrer. A like result must necessarily follow if the allegations or statements contained in the cause of action, which is made a part of the declaration by apt words, are repugnant to and inconsistent with the allegations in the declaration.
Neither section 1449 of the General Statutes of 1906, nor rule 14 (18 Sough. vii) of circuit court rules in common-law actions, requires the cause of action attached to a declaration to be full and complete within itself, independent of the declaration. If, however, the defendant conceives that the cause of action so filed is not sufficiently full, certain, and complete to enable it to plead with greater certainty to the declaration, it should move the court for an order requiring a more definite cause of action or bill of particulars. By failing to take this step before pleading, and by interposing a demurrer to the declaration, the defendant will be deemed to have waived any such defect, even if the same existed.
The proof offered by the plaintiff must be confined to the bill of particulars or cause of action, and it would not be permitted to introduce evidence which varied or contradicted the same, but this principle relates to matters of proof--not of pleading--and is not available in support of a demurrer.
Even if a finding, order, judgment, quasi judgment, or by whatsoever name it may be designated, of the Railroad Commissioners, imposing a penalty upon a railroad company for violation of one of the rules adopted by such Commissioners, should be held to properly fall within the class of instruments designated by the statute and rule as being required to be filed with the declaration as a cause of action, yet such an order, being at least in the nature of a judgment, may be construed and aided by the entire record in the case, though it would be more convenient as well as better in other respects that such an order should be so complete within itself that there would be no necessity for resorting to the record in the case in order to determine its validity, meaning, and effect.
In an action instituted by the state against a railroad company to recover a penalty imposed by the Railroad Commissioners against such company for the violation of one of the rules governing the transportation of freight, adopted by such Commissioners, a declaration which distinctly, clearly, and positively alleges that the defendant company operates a railway from a certain designated point in Florida to another designated point in such state, and refused to transport certain freight which was offered it at such first designated point to the second point so designated, in violation of a certain designated rule so adopted by such Commissioners, is not demurrable by reason of the fact that the order of the Commissioners imposing such penalty, a copy of which is attached to and by apt words made a part of the declaration, fails to designate the point of destination to which the offered freight was to be transported. The failure of such order to show the point of destination is cured by a proper allegation in the declaration.
A demurrer to a declaration containing only one count must be considered as applying to the declaration as an entirety, not to fragmentary portions of it, or to the attached copy of the cause of action alone, even though the same by apt words has been made a part of the declaration.
L. C. Massey, for the State.
Geo. P. Raney, W. E. Kay, Sparkman & Carter, and Blount & Blount & Carter, for defendant in error. This is an action brought by the Railroad Commissioners, in the name of the state of Florida, against the Seaboard Air Line Railway, a corporation, in the circuit court for Orange county, to recover a penalty of $1,000 imposed by such Railroad Commissioners upon the defendant for the violation of freight rule 3 of the Commissioners. The declaration is as follows:
'The State of Florida, by Louis C. Massey, special counsel for the Railroad Commissioners of the said state, directed by them to sue in this behalf, sues the Seaboard Air Line Railway, a corporation under the laws of the state of Virginia:
'For that the defendant is and was prior to the institution of this action, and on the days and occasions hereinafter alleged, a railroad company and a common carrier, operating a railway for the transportation of goods from points in Florida to points in Florida, and, among other points, from Abbott, Florida, to Jacksonville, Florida, and running into and doing business in Orange county aforesaid, and was charged before the Railroad Commissioners of the state of Florida with having by its officers, agents, and employés violated and disregarded the provisions of chapter 4700, p. 76, of the Laws of Florida for 1899 (now division 4, tit. 4, c. 5, §§ 2882-2925, of the General Statutes of the said State), and rule 3 of the rules governing the transportation of freight, adopted by the Railroad Commissioners aforesaid and in effect at the time of the said violation, which said rule is as follows:
'No railroad company shall decline or refuse to act as a common carrier to transport any article proper for transportation, and a failure to transport such article within a reasonable time, after the same has been offered for transportation shall be deemed a violation of this rule.'
'In this, that, as alleged in said charge, the defendant, on, to wit, January 10, A. D. 1907, and on divers days preceding said date, declined and refused to act as a common carrier to transport from Abbott aforesaid to Jacksonville aforsaid certain lumber, which the plaintiff alleges was proper for transportation, offered to the defendant at Abbott aforesaid by H. A. Brown and W. D. Brown, doing business under the firm name and style of the 'Brown Lumber Company,' for transportation to Jacksonville aforesaid; and after ten days' notice to the defendant of the charge of said violation and disregard of said law and rule, upon which charge the defendant had an opportunity to be heard and was heard by the Railroad Commissioners aforesaid, they, the said Railroad Commissioners, on April 10, A. D. 1907, having in accordance with law duly tried the defendant on said charge, adjudged the defendant guilty of a violation of said rule 3, and in accordance with law duly fixed and imposed a penalty for said offense on the defendant in the sum of one thousand dollars, a copy of which said judgment and order is hereto attached and made a part hereof.
'And the plaintiff avers that by reason of the premises the defendant became liable to pay promptly to the State Treasurer of the state of Florida the said sum of one thousand dollars, with interest thereon from April 10, 1907; yet the defendant has not paid the same or any part thereof, but neglects and refuses so to do, to the damage of the plaintiff.
'And the plaintiff claims $1,500.00.
'[Signed] Louis C. Massey,
'Special Counsel for the Railroad Commissioners of the State of Florida.
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