The State of Florida, Plaintiff in Error, v. Seaboard Air Line Railway, a Corporation, Defendant in Error, 56 Fla. 670

Shackleford, C. J. (After stating the facts.) — We assume that the cause of action in this case is among those designated by

Section 1449 of the General Statutes of Florida of 1906, and Rule 14 of Circuit Court Rules in Common Law Actions, which provide that certain instruments designated therein, or a copy thereof, shall be filed with the declaration, as it has been so treated by both parties and the court below. But see Sammis v. Wightman, 31 Fla. 10, text 31, 12 South. Rep. 526, text 532.

It has been uniformly held by this court that the object of this statute and rule in requiring the cause of action, or a copy thereof, 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, in order that he may plead thereto with greater certainty. Ordinarily it 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.

If no such c-aus-e of action or bill of particulars be filed, or if the same be filed but is insufficient or defective, by pleading to the declaration the defendant will be deemed to have -waived such omission or defect. See Waterman v. Mattair, 5 Fla. 211; McKay v. Lane, 5 Fla. 268; Barbee v. Plank R. Co., 6 Fla. 262; Hooker v. Gallagher, 6 Fla. 351; Robinson v. Dibble, 17 Fla. 457; Wilson v. Fridenberg, 22 Fla. 114, text 152; Stephens v. Bradley, 24 Fla. 201, text 205, 3 South. Rep. 415, text 417; Columbia County v. Branch, 31 Fla. 62, text 69, 12 South. Rep. 650, text 652; First National Bank of Fla. v.

Savannah, F. & W. Ry. Co., 36 Fla. 183, 18 South. Rep. 345; Martyn v. Arnold, 36 Fla. 446, 18 South. Rep. 791; Muller v. Ocala F. & M. Works, 49 Fla. 189, text 198, 38 South. Rep. 64, text 67; Milligan v. Keyser, 52 Fla. 331, text 347, 42 South. Rep. 367, text 371; Royal Phosphate Co. v. Van Ness, 53 Fla. 135, 43 South. Rep. 916; Butler v. Ederheimer, 55 Fla. 544, 47 South. Rep. 23, text 25; Poppell v. Culpepper, 56 Fla. 515, 47 South. Rep. 351.

Both parties, as well as the court below, have treated the copy of the “judgment and order” of the commissioners imposing the penalty attached to and by reference made a part of the declaration as being properly a part thereof which can be reached by demurrer. This practice has been questioned by this court, but it has always followed the example of both parties and the trial court in likewise treating it. See Wilson v. Fridenberg, 22 Fla. 114, text 152; Sammis v. Wightman, 31 Fla. 10, text 31, 12 South. Rep. 526, text 532; First National Bank of Fla. v. Savannah, F. & W. Ry. Co., 36 Fla. 183, text 192, 18 South.

Rep. 345, text 347; Martyn v. Arnold, 36 Fla. 446, text 449, 18 South. Rep. 791, text 792; Langley v. Owens, 52 Fla. 302, text 308, 42 South. Rep. 457, text 459; Milligan v. Keyser, 52 Fla, 331, 42 South. Rep. 367; Royal Phosphate Co. v. Van Ness, 53 Fla. 135, 43 South. Rep. 916. The demurrer, then, must be considered as being addressed to the entire declaration, of which such “judgment and order” of the commissioners, a copy of which is attached hereto, forms a part. As was held in Florida Cent. & P. Ry. Co. v. Ashmore, 43 Fla. 272, 32 South.

Rep. 832: “Where the 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, as was done in the instant case, are repugnant to and inconsistent with the allegations in the declaration.

We call attention to the fact that, although the demurrer contains forty-five grounds, such ground of repugnancy and inconsistency is not embraced among therii, and no such point is made before us, therefore, even if such ground existed, it might be deemed to have been waived. Florida Cent. & P. Ry. Co. v. Ashmore, supra; Little v. Bradley, 43 Fla. 402, 31 South. Rep. 342; State ex rel. Kittel v. Trustees I. I. Fund, 47 Fla. 302, 35 South Rep. 986; Moore v. Lanier, 52 Fla. 353, 42 South. Rep. 462; Jacksonville Electric Co. v. Schmietzer, 53 Fla. 370, 43 South. Rep. 85; Atlantic Coast Line R. Co. v.

Crosby, 53 Fla. 400, 43 South. Rep. 318; Royal Phosphate Co. v. Van Ness, 53 Fla. 135, 43 South. Rep. 516. As a matter of fact, however, there is neither repugnancy nor inconsistency betwieen the allegations in the declaration and the cause of action, as a comparison thereof will readily show, both being copied in the statement preceding this opinion.

The declaration distinctly, clearly and positively alleges that the defendant operates a railway from Abbott, Florida, to Jacksonville, Florida, and refused to transport certain lumber which was offered to' it for transportation from Abbott to Jacksonville, while the cause of action simply contains allegations to the effect that the defendant refused to transport certain lumber offered to' it for transportation from Abbott, Florida, the point of destination not being designated therein.

Now we know of no rule or statute requiring the cause of action attached to a declaration to be full and complete within itself, independent of the declaration. Even if such a requirement exists, conceding for the purposes of this case that this cause of action is among those designated by the statute and rule, if the defendant conceived that it was not sufficiently full, certain and complete to enable it to plead with greater certainty to the declaration, it should have moved the court for 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 must be deemed to have waived any such requirement, even if the same existed. See the reasoning along this line in the authorities already cited. Of course, in the instant case, as in other cases, 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. See authorities previously cited, especially Hooker v. Gallagher, Robinson v. Dibble; Columbia County v. Branch; Butler v.

Ederheimer, supra. Also see West v. Fleming, 36 Fla. 298, 18 South. Rep. 587. However, all this relates to matters of proof — not of pleading. It may be well enough, however, to call attention to the fact that every judgment may be construed and aided by the entire record in the case, though it is more convenient as well as better in other respects that a judgment should be so complete within itself there would be no necessity for resorting to the record in the case in order to determine its validity, meaning and effect. See Taylor v. Branham, 35 Fla. 297, 17 South. Rep. 552, S. C. 48 Amer. St. Rep. 249, 39 L. R.

A. 362; Elizabeth Cordage Co. v. Whitlock, 37 Fla. 190, 20 South. Rep. 255; Pearson v. Helvenston, 50 Fla. 590, 39 South. Rep. 695; Clay v. Hildebrand, 34 Kan. 694, 9 Pac. Rep. 466; National Foundry & Pipe Works v. Oconto Water Supply Co., 183 U. S. 216, text 234, 22 Sup. Ct. Rep. 111; United States ex rel. Coffman v. Norfolk & W. Ry. Co., 114 Fed. Rep. 682; 23 Cyc. 1102; 5 Ency. of Pl. & Pr. 1060; 1 Black on Judgments, § 117; 1 Freeman on Judgments, § 45.

If this be true as applied to judgments and decrees generally, we know of no reason why it would not apply with full force to the finding, order, judgment, quasi-judgment, or by whatsoever name it may be designated, of the commissioners imposing a penalty upon a railroad company for violation of one of the rules adopted by such commissioners. The case of Littlefield v. Fitchburg Railroad Co., 158 Mass. 1, 32 N. E. Rep. 859, seems to us to be very much in point.

In that case the action was to recover penalties to the amount of $4,410 from the defendant railroad for failure to comply with an order of the railroad commissioners as to the shipment of milk. The declaration was demurred to; which demurrer was sustained by the trial court, and, on appeal, such judgment was affirmed. In that case, as in the instant case, it was contended by the defendant that the order made by the railroad commissioners was fatally defective upon various stated grounds, among others that it did not appear in the order to what point of destination the milk was to be transported.

In an able opinion rendered by Mr. Justice Knowlton it was said that there was nothing in the record to “indicate that the defendant had notice of the petition, or an opportunity of being heard before the railroad commissioners. If it was notified, the failure of the order of the railroad commissioners to show it might be cured by an allegation in the declaration. Perhaps the full record of the railroad commissioners may show notice and a hearing of the defendant; but if it does, it is not before us.

From what occurred at the argument, we may suppose that the defendant was before the commissioners ; but on a demurrer we cannot go outside of the record before us.

So' far as it appears, the order was invalid for want of a notice to< the defendant.” The concluding paragraph of the opinion is as follows: “So far as we can judge from the record before us, the proceedings were not sufficiently regular and formal, and the order was not sufficiently explicit to be made a foundation for a recovery of the penalties prescribed by the statute.” If the failure of the order in that case to show jurisdiction could have been cured by an allegation in the declaration, could not the failure of the order in this case to show the point of destination be cured by an allegation in the declaration?

The answer is so obvious that no comment is necessary. We would further call attention to the fact that a number of the grounds of the demurrer are directed solely against the attached copy of the cause of action. This will not do'. As we have already seen, the only way the cause of action could become a part of the declaration at all was by apt words making it so, otherwise it could not be reached by demurrer at all.

The declaration contains only one count, therefore the demurrer must be considered as directed against and applying to the declaration as an entirety, not to fragmentary portions of it, or to the attached copy of the cause of action alone. Muller v. Ocala Foundry and Machine Works, 49 Fla. 189, 38 South. Rep. 64; Hooker v. Forrester, 53 Fla. 392, 43 South. Rep. 241; Griffing Brothers Company v. Winfield, 53 Fla. 589, 43 South. Rep. 687; Atlantic Coast Line R. R. Co. v. Beazley, 54 Fla. 311, 45 South. Rep. 761.

We have given the matter our most careful consideration and, after so doing, have reached the conclusion that the declaration is not so defective a pleading as to be open to the attack made on it by the demurrer. In view of the extended discussion in the opinion in the case of the State of Florida v. Atlantic Coast Line Railroad Company, filed this day, and the conclusion therein announced, it becomes unnecessary for us to consider the question of the constitutionality of the Railroad Commission Act further than to- state that it has not been made to appear to- us wherein such act i-s unconstitutional.

We -are also- of the opinion for the reasons stated therein that the commissioners had the power and authority-under such act to make at least that portion of Freight Rule 3 involved here, and that the same is not invalid or unreasonable. It follows that the judgment must be reversed, and it is so ordered with directions to overrule the demurrer. Cockrell, Hooker, Whitfield and Parkhill, JJ., concur.