Alabama & Vicksburg Railway Co. v. Hanes , 69 Miss. 160 ( 1891 )

Woods, J.,

delivered the opinion of the court.

The action of the trial court in refusing to entertain the appellant’s motion to exclude all the evidence offered by appellee was not erroneous. The motion is based upon the idea that the declaration alleging that certain wrongs, set out in that pleading, were done wilfully, and the evidence of the plaintiff showing that they were negligently done, at the worst, there was a fatal variance, and a failure to support the complaint by competent evidence. The pleading averred wrongs done wilfully; the evidence tended to show wrongs done negligently. The supposed wrong-doer was a common carrier of passengers, owing certain duties to the public. The wrong-doing averred in the pleading was a wilful disregard of some of these public duties; the wrong-doing which the evidence tended to show was a negligent disregard of some of these public duties. The pleading alleged a particular wrong, and the proof showed,'or tended to show, a wrong of the character referred to in the declaration, but. of a lesser degree. The pleading averred negligence, and more than mere negligence; the evidence showed negligence merely.

It was altogether permissible to treat the averments of wilfulness as surplusage. Striking out that part of the complaint charging, wilfulness, there yet remained a sufficient declaration for wrongs negligently done.

In support of this contention, appellant’s counsel refer to several decisions on this point made by the supremo court of Alabama. The Alabama court, in the very recent case of the Highland Av. & B. R. Co. v. Winn, 93 Ala., 306, in substance says that this question was decided in 79 Ala., and that the point — the fatal variance between an averment of a wilful act and the evidence of a negligent act — though somewhat technical, having been passed upon by that court, it will not now be departed from. The eases of C., B. & Q. R. R. Co. v. Bell, 112 Ill., 360, and the W., St. L. & P. Ry. Co. v. Coble, 113 Ill., 115, afford no reasonable support for the view contended for by counsel. The two Illinois cases are to the effect that where plaintiff has alleged a particular act as negligently done, and upon which the right of action is fouuded, he will not be permitted to prove another act negligently done as the ground for recovery. It is apparent, at a glance, that the question passed upon by the supreme court of Illinois in both the cases referred to was widely different from the one involved in this contention. The only remaining authority cited by counsel is 2 Thompson on Negligence, p. 1217. In this reference we find nothing to aid the counsel’s contention. On the contrary, this author lays it down that if negligence is sufficiently averred, further allegations that the negligence was wilful may be treated as mere surplusage.

The action complained of was clearly right, and the current of authority in support of it is almost unbroken. 1 Chitty on Pleading, 389; 1 Hilliard on Torts, 123; 17 Johns., 92; 24 Iowa, 336 ; 45 Mo., 371, and many others.

The refusal of the eighth instruction asked by appellant in the court below, raises the only other question to be considered. This refused instruction said that “the declaration containing no specifications of the nature and kind of damage claimed, the jury can only allow the plaintiff such as naturally and proximately arose out of the fact that he was carried beyond his station and put out or got out at the point shown in the evidence. This damage will be compensated for by allowing a sum sufficient, in the estimation of the jury, to cover the inconvenience of having to walk a greater .distance to his house than he would have walked had he gotten out at the flag-station.” In support of this assignment 'of error, counsel insist that the case before us is one in which the rules applicable in suits for damages for the mere breach of a contract pure and simple are to be invoked. There was a breach of an implied contract shown on the part of this common carrier of passengers, but was that all? Connected with this -breach of an implied contract there is shown a negligent omission to discharge a duty to the public by the carrier. The declaration and the evidence are for a tort. The mistake of counsel arises from failure to bear in mind the difference in the standards for assessing damages for breaches of contracts merely and in those for torts.

The text-writer cited by counsel as holding this view (Sutherland on Damages, vol. I., pp. 74 to 101) certainly states the law as counsel quote in their brief, but the author is treating of damages for breaches of contracts pure and simple. And the case of Hobbs v. London Railway Co., L. R., 10 Q. B., 111, supposed by counsel to be cited approvingly by Sutherland, is cited by the author only to be criticised and condemned. The English court, in that case, appears to have held to the views advanced by the counsel in the case in hand, but the view receives no countenance from the learned author referred to above.

The case of Murdock v. Boston & Albany R. R. Co., 133 Mass., 15, is not at all authority for counsel’s contention. Murdock, the plaintiff in that case, brought an action for the recovery of damages for a breach of contract to carry •him to North Adams. He sued upon his contract of carriage, in the form appropriate to that cause of action, and was denied a recovery for wrongs maintainable only in an .action of tort. The distinction is clearly drawn by the court in its opinion.

The case of Walsh v. Chicago, etc., Ry. Co., 42 Wis., 23, .affords no ground for the contention here pressed on us. While Walsh’s suit was for the failure of the defendant corporation to carry plaintiff' from Watertown to Madison, yet the facts disclosed clearly showed only a breach of a special ■contract, and the action, as we think, on the facts, was properly held to he an action upon the special contract, and not for a tort. The facts showed a special contract for a Sunday train, and a breach of that contract, but no breach of the ■common carrier’s general duty to the public, the railroad company not running passenger-trains on Sunday for the accommodation of the public, nor holding itself out as ready to transport passengers on that day.

We apprehend, however, that there is no conflict in authority on this point. Wherever there seems conflict, it will he found to aris'e from a failure to keep in mind the distinction bet-ween damages for a breach of contract pure’ and simple and damages for a tort. The refused charge eight, in spirit and letter, is in conflict with the settled law of this state. See L., N. O. & T. R. R. Co. v. Mask, 64 Miss., 738; Chicago R. R. Co. v. Scurr, 59 Miss., 456; So. R. R. Co. v. Kendrick, 40 Miss., 374; Heirn v. McCaughan, 32 Miss., 17.

The other rulings of the court of which complaint is made appear to us to be so clearly right as to demand no remark.

The jury has passed upon all the facts offered in evidence, and has determined the issue favorably to the appellee; We cannot,say that the jury coukl not, on the evidence offered, find that appellee's loss of voice and the chorea which dismally afflicts him are not the natural, probable or direct consequences of the wrong which his evidence tended' to show was done him.

Affirmed.