#### WILLISTON COAL & ICE COMPANY, a Corporation, Respondent, v. JAMES COX DAVIS, Agent of the President under the Transportation Act of 1920, Appellant.

(190 N. W. 776.)

Carriers — duty at common law to properly cooper cars.

1. The common-law duty is imposed upon a carrier to furnish cars reasonably coopered for the purposes intended in an intrastate shipment.

Carriers — complaint for failure to cooper cars held to allege cause of action.

2. A complaint, alleging failure to so cooper cars and the furnishing of such cooperage by a shipper in intrastate shipments of lignite coal to his damage, alleges a cause of action.

Railroads — carrier’s common-law duty to cooper cars suspended by Federal control.

3. It is a matter of defense for the carrier to show that such cooperage concerns interstate rates or Federal regulations, of such an administrative character, and so subject to Federal administration, during a period of Federal control, as to suspend the common-law duty imposed.

Opinion filed November 2, 1922.

Carriers, 10 C. J. § 71 p. 76 n. 3; § 88 p. 85 n. 14. Railroads, 33 Cyc. p. 45 n. 36.

Action in District Court, Williams County, *Moellring,*J.

Tbe defendant bas appealed from an order overruling a demurrer.

Affirmed.

*Murphy é Toner,*for appellant.

*Fisk & Taylor,*for respondent.

Statement.

BkoNsoN, J.

Tbe defendant bas appealed from an order overruling a demurrer to tbe complaint.

In substance tbe complaint alleges: Tbe plaintiff is a corporation engaged in tbe mining and disposition of lignite coal near Williston in tbis state. Between January 25tb, 1919, and March 1st, 1920, tbe plaintiff shipped 308 carloads of lignite coal over tbe great Northern Bailroad, a carrier then under Federal control, from Williston to various points in tbis state. Prior to such shipments tbe plaintiff requested *192tbe carrier to furnish necessary, proper, and sufficient cooperage for the cars. The carrier refused so to do unless paid therefor at the rate of about $4 per car. In order for plaintiff to load and make shipment of such carloads of coal'it became necessary to pay the carrier the amount so demanded for such cooperag'e or to furnish the cooperage, which the plaintiff did at a cost of $711.48. Between such dates the carrier furnished free cooperage of cars to other mine owners who similarly shipped lignite coal, at prices the same as charged by the plaintiff. Thereby the carrier gave a preference to such other persons and exacted a greater compensation for cooperage contrary to the provisions of article 21, chap. 14, N. D. Comp. Laws, 1913. By reason thereof, the plaintiff sustained actual damages in the sum of $711.48.

The demurrer asserts that the court has no jurisdiction of the carrier nor of the subject of the action; that the complaint does not state facts sufficient to constitute a cause of action.

Both in the trial court and in this court, the parties have submitted the issues upon written briefs and without oral arguments.

The defendant carrier contends: *First,*— that this action seeks to recover a statutory penalty and cannot be maintained because Congress never gave its consent that the United States or the Director General be sued; *second,*— that the question whether plaintiff has been subjected to discrimination is primarily an administrative question requiring precedent action by the railroad commissioners; *third,*— that rates, both interstate and intrastate, during the Federal control, were initiated and made effective by the President so as to render ineffective the statutes upon which plaintiff bases his cause of action and that jurisdiction was vested in the interstate commerce commission to award reparation for discrimination.

Decision.

Whether the court has jurisdiction over the person and subject of the action is answered by determining whether the complaint states a cause of action.

It is elemental, upon demurrer, that a complaint will be liberally-construed and will not be overthrown if it states any cause of action. Weber v. Lewis, 19 N. D. 473, 34 L.R.A.(N.S.) 364, 126 N. W. 105; 31 Cyc. 101, 289, 290; 21 R. C. L. 508.

*193At tbe common law a duty was imposed tipon carriers to fumisb cars reasonably well coopered for tbe purposes intended. Loomis v. Lehigh Valley R. Co. 208 N. Y. 312, 101 N. E. 907; Cincinnati, N. O. *&*T. P. R. Co. v. N. K. Fairbanks & Co., 33 C. C. A. 611, 615, 62 U. S. App. 231, 90 Fed. 467; Chicago & A. R. Co. v. Davis, 159 Ill. 53, 50 Am. St. Rep. 143, 42 N. E. 382; Gibbon Farmers Elevator Co. v. Minneapolis & St. L. R. Co. 142 Minn. 57, 170 N. W. 706. This common-law duty is. recognized in tbis state, analogously, by a statute requiring carriers wbo furnish cars to grain shippers to properly cooper tbe same or permit tbe shipper to furnish tbe cooperage and recover the expense in a civil action. Laws 1913, chap. 234; Comp. Laws 1913, § 4707.

Clearly, tbe complaint alleges a breach of such common-law duty, and a cause of action for its violation. Loomis v. Lebigb Valley R. Co. and Gibbon Farmers Elevator Co. v. Minneapolis & St. L. R. Co. supra. Tbe time covered in tbe complaint constitutes a period of Federal control of tbe carrier anterior to tbe adoption of tbe Transportation Act of March 1st, 1920. Tbe demurrer admits tbe failure of tbe carrier to perform its common-law duty. To constitute a cause of action, as stated, it was unnecessary for tbe plaintiff to plead, by negation, any ultimate facts that might serve to suspend the operation of such common-law rule through Federal administration, or control. 21 R. C. L. 485. If tbis court should take judicial notice of Federal acts and orders, it does not follow that tbis question of cooperage of cars, in intrastate business, concerns either interstate rates or Federal regulations, or forms a part of any administrative question or order. It is a matter o'f defense for tbe carrier to show, through pleading and proof, that the enforcement of tbis common-law duty and remedy presents an administrative question concerning interstate rates or Federal regulations and control, subject to tbe jurisdiction, either exclusive or preliminary, of tbe interstate commerce commission or other administrative agency. See Baird Bros. v. Minneapolis *&*St. L. R. Co. 181 Iowa, 1104, 165 N. W. 416; Dreyfuss v. Pennsylvania R. Co. 90 Misc. 581, 153 N. Y. Supp. 971; Great Northern R. Co. v. Merchants Elevator Co. 147 Minn. 251, 180 N. W. 105; id.259 U. S. 285, 66 L. ed. 943, 42 Sup. Ct. Rep. 477 (May 29th, 1922); Midway Co-op. Elevator Co. v. Great Northern R. Co. 41 N. D. 16, 169 N. W. 494; 10 C. J. 502. To give *194any effect to snob matters of defense through judicial notice would operate practically to make the demurrer a speaking demurrer. 31 Cyc. 322. Accordingly, the order overruling the demurrer is affirmed with costs.

Birdzell, Oh. J., and Christianson, RobinsoN, and Grace, JJ., concur.