BEFORE DAN LEE, PRESIDING JUSTICE, ROBERTSON AND ZUCCARO, JJ.
Comet Delta, Inc. (" Delta ") appeals the dismissal of its action brought in the Chancery Court of Jackson County, Mississippi, against Pate Stevedore Company of Pascagoula, Inc. (Pate) for alleged damage caused to Delta's rice stored at the Jackson County Port Authority in August 1981. Delta alleged $247,161.86 in damages.
The chancery court granted Pate's motion to dismiss based on Delta's failure to state a claim upon which relief could be granted. Delta assigns this error:
APPELLANT ASSIGNS AS ERROR ACTION OF THE CHANCELLOR IN GRANTING A MOTION TO DISMISS THE AMENDED COMPLAINT UNDER RULE 12 (b)(6), MRCP, THUS DENYING IT ITS DAY IN COURT, WHERE THE FACTS IN THE RECORD DEMONSTRATE ONE OR MORE OF SEVERAL GROUNDS SUPPORTING RELIEF.
Since this case presents a dismissal based on pleadings, there is little factual development. However, a brief summary of the facts follows:
This case was commenced by Comet Delta, Inc., *fn1 as an action against Pate Stevedore Company of Pascagoula, Inc. (" Pate "), and" John Doe, "the then unknown owners of coal stored near Terminals" A "and" F "on the Jackson County Port Authority (" Port ") premises, under lease to Pate, and located in the vicinity of Terminals" G "and" H "under lease to Ryan-Walsh Stevedoring Company, Inc. (" Ryan-Walsh ").
When the identity of the owners became known, Delta amended the complaint naming Armada Coal Export, Inc. (" Armada "), and Zenith Coal Sales (" Zenith ") as defendants in the stead of" John Doe. "This was the only amendment. Zenith filed no response, and a judgment was entered November 21, 1983, against it which remains unsatisfied. Armada filed a petition for bankruptcy and this action was dismissed without prejudice as to it on May 20, 1985. The only remaining parties at interest are Delta and Pate.
The allegations in the complaint are that Delta had shipped itself, care of Ryan-Walsh, 200,000 50-kilo polypropylene bags of U. S. No. 2 or better milled rice, maximum 4% brokens, for storage in Port terminals leased by Ryan-Walsh. It contracted to sell this rice to Lodean, Ltd. (" Buyer ") of London, United Kingdom, for $614 per metric ton, f.o.b. Port. This purchase price on 10,022.68 metric tons equals $6,153,925.52.
About half this rice was stored by Ryan-Walsh in Terminals" G "and" H "and damaged by windborne coal dust from large piles of coal placed by Pate in open storage across a slip from Terminals" G "and" H. "
Buyer designated SGS Control Services (" SGS ") as its agent for inspection and acceptance of the rice prior to shipment to Kalabar, Nigeria. On August 17, 1981, Delta gave Ryan-Walsh instructions to remove plastic drapes covering rice stored in Terminals" G "and" H "for purposes of fumigation, to permit inspection by SGS as agent for Buyer. During the period of August 17-24, while the rice was uncovered for inspection, coal dust stored by Pate was carried by winds and contaminated this rice. As a result of this contamination, SGS rejected the rice for the account of the Buyer.
As a direct and proximate result of this contamination, Delta alleged monetary damages amounting to $247,161.86, itemized in paragraph 6 of the amended complaint.
The amended complaint charges that coal dust in open storage has a known propensity to be blown by winds and deposited upon nearby property, that Pate interfered with
Delta's legal right to store its property in adjacent terminals free from harm without just cause or excuse, and that Pate committed an intentional act involving a culpable wrong, resulting in damage to Delta's property and losses under its contract as the necessary consequence of Pate's acts. It further charged that Pate is liable to it under the rule of absolute or strict liability for all damages proximately caused by or resulting from contamination of its rice.
Pate's answer was duly filed and later supplemented with two additional defenses. During July 1985 Pate noticed a motion to dismiss for hearing before the chancellor based on the grounds that:
The Amended Complaint fails to state a claim upon which any relief can be granted against this defendant.
Pate's motion was heard on July 8, 1985, and on December 4, 1985, the chancellor entered an order dismissing the amended complaint under Rule 12 (b)(6), ...