Payton v. Gulf Line Railway Co. , 4 Ga. App. 762 ( 1908 )

Powell, J.

(After stating the facts.)

1. The petition sets forth a good cause of action as to the actual damages sustained, whether it sounds in contract or in tort. A railroad company which has made a contract of transportation with a proposed passenger, and then, without notice, causes its train to leave without coming by the place at which it is accustomed to receive passengers, and without giving the proposed passenger a chance to get aboard, not only breaks its contract with him, but also violates a public duty toward him. Savannah R. Co. v. Bonaud, 58 Ga. 180; Durden v. So. Ry. Co., 2 Ga. App. 66 (58 S. E. 299); Perry v. Central Railroad, 66 Ga. 746 (1). The measure of damages in such cases is fully set forth in Central Railroad v. Combs, 70 Ga. 533 (48 Am. R. 582).

2. If the suit were construed to be an action ex contractu, punitive damages would not be recoverable, and all claim as to them should be stricken from the petition (Ford v. Fargason, 120 Ga. 708, 48 S. E. 180); but the fact that a petition prays for too much does not render it subject to general demurrer. Pierce v. Middle Ga. Land Co., 131 Ga. 99 (61 S. E. 1114); Kupferman v. McGehee, 63 Ga. 250. However, the allegations leaving it uncertain as to whether the suit is brought on the breach of the contract or for the special damages arising from the public wrong, and this formal defect not having been complained of by special demurrer, the petition will be given that construction most favorable to the assertion of a cause of action in plaintiffs favor, and will be held in the present ease to be an action ex delicto. Lytle v. So. Ry. Co., 3 Ga. App. 221 (59 S. E. 595), and cit.; Jenkins v. Seaboard Ry., 3 Ga. App. 381 (59 S. E. 1120); Central R. Co. v. Pickett, 87 Ga. 734 (13 S. E. 750). The court erred in sustaining the demurrer. Judgment reversed.