Western Union Tel. Co. v. Littleton , 169 Ala. 99 ( 1910 )

SIMPSON, J.

The appellee sued the appellant for damages for transmitting incorrectly the message set out in count 2, which will be copied by the reporter in the. statement of this case. The only assignment of error insisted on relates to the action of the court in overruling the demurrer to the second count of the complaint. The demurrer was based upon the idea that said count is in tort and not on the contract.

It has been frequently remarked that it is often difficult to determine whether a count is on the contract or in tort, and it is to be regretted that counsel do not save themselves trouble by observing the distinctions and making their counts so distinctly one or the other that there can be no doubt.

In one of our early cases, which has been a leading case ever since, it was said that: “Perhaps the best criterion is this: If the cause of action, as stated in the declaration, arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty, growing out of a contract, it is, in form, ex delicto, and case. Nor instance, if the declaration allege the hiring of a horse to ride to a certain place, and that the defendant rode him so immoderately that he died, this would be case, for the contract of hire imposed upon him the duty to ride in reason, or not unreasonably fast; but if the declaration allege the hiring, and that he promised to ride with reasonable speed, but, not regarding his promise, he rode the horse immoderately, whereby he died, the action would be considered assumpsit.” — Wilkinson v. Moseley, 18 Ala. 288, 290, 291.

This case has been frequently referred to and folloAved, but for terseness of expression and simplicity of illustration we doubt if it has ever been surpassed. See Mobile Life Insurance Co. v. Randall, 74 Ala. 170, 177, 178; White v. Levy, 91 Ala. 175, 177, 8 South. 563; Postal Tel. Cable Co. v. Ford, 117 Ala. 672, 23 South. 684.

The second count sets out the contract, consideration, etc., alleges that “the defendant broke said contract, in this,” and then goes on to allege that it negligently failed, etc., all of which is necessarily referred back to the preceding expression that it broke the contract “in this.” In other words,, what follows is merely telling how the company broke the contract. The connt then goes on to explain how plaintiff has been damaged, and winds np by alleging that it was all on account of “defendant’s said negligence and carelessness,” which had previously been expressed as the manner in which the contract was broken. In other words, referring to the analogy of the horse, the count alleges that the defendant contracted to deliver that particular message, and that it did not do so, hut breached said contract in the manner set out. We' hold that the second count is ex contractu.

Defendant insists, on the authority of Manker v. W. U. Tel. Co., 137 Ala. 294, 34 South. 839, that all doubt about said count 2, being ex delicto, is removed by the fact that the count was treated and acted on by the court and parties as a count ex delicto.

We do not so understand the record. It is admitted that the first count is ex contractu, and the pleas were general, to the entire complaint, first, denying all the material allegations of the complaint, and, second, pleading not guilty; so it cannot be said that there was any distinct plea of not guilty to this count, and we do not intimate that, if there was, it would fix the character of the count.

It cannot he said that it was so treated because demurrers were interposed to each count and overruled. The demurrers may have been overruled for the very reason that the counts were both ex contractu, and the demurrers therefore inapplicable.

There was no error in overruling the demurrers to said second count.

The judgment of the court is affirmed.

Affirmed.

Anderson, Mayfield, and Sayre, JJ., concur.