In this case, which was a suit for recovery from a shipper of alleged undercharges for freight transported by plaintiff railroad company, the gist of the allegations of the special counts of the declaration was that, under the tariffs and schedules of charges of the carrier, on file with and approved by the Railroad Commission at the time of the shipment of certain stave bolts and headings to defendant, that defendant had become liable to pay, but had not paid to the carrier, the full amount of the applicable tariff charges.
A plea filed to the declaration in effect denied the allegations of plaintiff's special counts as to there being any amounts due the railroad company over and above what theproper tariffs called for. While the plea undertook to set forth the reasons why defendant claimed no undercharges were due, in that defendant contended that the fuel rate should have been applied as it was applied, to the particular shipments in controversy, yet in substance the plea simply puts in issue the general substantive allegation of plaintiff's declaration concerning liability for the undercharges sued for.
Where a plea to the merits is of such nature that under it a defense to the action may be proved, the plea is good *Page 269 and a demurrer to it should not be sustained. McDaniel v. Harrell, 81 Fla. 66, 87 Sou. Rep. 631, 13 A. L. R. 1333.
The defendant's special plea to which plaintiff's demurrer was sustained in this case in effect puts in issue the allegation of plaintiff's declaration to the effect that the defendant had failed to pay to the carrier the full sums of money due it for the transportation and delivery of stave bolts and headings according to the tariff rates and chargeslawfully in force and applicable.
The question whether the Railroad Commissioners' Class P rate, as apparently claimed by the carrier, or some other rate, as claimed by the shipper in his plea, was the properly applicable rate, cannot be decided on the pleadings alone, since neither tariff is pleaded and we cannot take judicial notice of railroad tariffs not so specifically pleaded and set forth in the record as to be susceptible to judicial construction.
Defendant's third additional plea affords the basis for a defensive showing by the defendant at a trial that the shipments it actually made were of such character as not to be subject to the higher charges sued for by the railroad company, whether the particular fuel rate set up in the plea and relied on by defendant is the applicable rate or not.
The issues presented by the declaration and plea considered together were: (1) what was the applicable rate, if any, prescribed by the Railroad Commission for stave bolts and headings and (2) whether or not the shipper had paid such applicable rate, or had only paid such amount on it as to leave an undercharge due the railroad company. These questions are mixed questions of law and fact, to be decided upon a consideration of the particular tariffs claimed to be applicable, after they are adduced in evidence and are before the court together with facts and circumstances in *Page 270 evidence to show the nature and character of the material shipped.
It is admitted by all parties that no specific tariff exists for stave bolts and heads eo nomine. Therefore a mixed question of law and fact is presented as to what tariff is legally applicable to the shipments sued for, considering the tariffs in the light of the established facts concerning the shipment.
The judgment should be reversed with directions to overrule the plaintiff's demurrer to defendant's third additional plea and have such further proceedings as may be according to law.
Reversed and remanded for further proceedings.
DAVIS, C. J., and WHITFIELD, TERRELL and BROWN, J. J., concur.
ELLIS and BUFORD, J. J., dissent.