Purcell v. Richmond & Danville Railroad , 108 N.C. 414 ( 1891 )

The ruling of the court below was correct in both particulars. The defendant's demurrer and motion to dismiss were based upon the mistaken idea that the action was necessarily for breach of contract. It is true that the plaintiff might have elected to have sued in contract, and if so, he should set out the price paid for his ticket, and the measure of his recovery would have been the price paid for the same, the cost of procuring another mode of conveyance to his destination, and such other special damages, if alleged, as were the direct and necessary consequences of the breach of contract.

But it is also equally true that the plaintiff could have sued in tort (Bishop Noncontract Law, secs. 73, 74; Thompson on Carriers, 544; Redfield on Carriers, sec. 414), and it is clear that such was his intention here. The gravamen of his complaint is that he "went to the passenger depot just before the time published by the defendant for the arrival and departure of its regular passenger train, which is due and passes said depot about 5 o'clock every morning, and remained upon or near said platform until said train did arrive, which occurred about 6 o'clock a. m.; that when said train did arrive it made no stop at Haw River station at all, but ran by said station with great speed, not allowing any passengers to get upon it, and leaving the plaintiff standing and remaining at said depot, to his great disappointment, annoyance, and damage in the sum of $500, and hence he brings this suit."

When a passenger, while traveling on the cars, is injured by negligence of the carrier, he can sue either for the breach of contract of safe carriage or in tort for the negligence. Craker v. R. R., 36 Wis. 637, and the cases cited. And in a case where the passenger was carried past (423) his destination, it was held that the action would be deemed founded in tort, unless it plainly appeared that the breach of contract was the gravamen of the complaint; that "the action will be regarded in tort or contract, having regard to the character of the remedy the facts indicate, and the most complete and ample redress which, upon the facts stated, the law can afford," and that the allegation of "the contract of carriage is a mere inducement to the action to show that the defendant was lawfully there," but that the point of grievance is the wrong done the plaintiff and the violation of public duty by the common carrier. R. R. v.Hurst, 34 Miss. 661. A case exactly in point, however, is Heirn v.McCaughan, 32 Miss. 1, in which it is held: "An action against a common carrier for a failure to stop at a regular station and take on board a passenger, according to advertised schedule, is founded in tort, and not on a special contract, it being for a violation of a general duty to the public."

Even had the plaintiff alleged the price paid for the ticket (which was not necessary in the action for tort), it would not have been conclusive that the action was in contract; for the facts alleged in the complaint, taken as a whole, show that the plaintiff was not seeking to recover in contract for the pittance paid for his ticket, but for the wrong done him by the breach of public duty and the willful disregard of his rights by the defendant in not allowing him to get on the train at its regular depot, but "running its train by without stopping, and leaving him standing and remaining at said depot, to his great disappointment, annoyance, and damage in the sum of $500."

It is clear that whatever merits the evidence might indicate, as a matter of pleading, the plaintiff's action was in tort; that the Superior Court had jurisdiction, and that the complaint did not fail to state a cause of action, in that (as defendant demurred) the price of the ticket, special damages and other matter which would have been proper in an action ex contractu were not alleged. Indeed, the whole (424) subject has been so recently considered in Bowers v. R. R.,107 N.C. 721, that we might have contented ourselves with a bare reference to that case in which Merrimon, C. J., says: "Obviously, these words were intended to allege more than a simple breach of the contract — a tort — a tortious injury. Granting that more appropriate terms for such purpose might have been employed, still the Court can see the purpose informally expressed, and, as it can, the pleading should be upheld and the jurisdiction sustained."

Under the former system of practice, the pleadings were construed most strongly against the pleader, but now the statute (The Code, sec. 269) requires them to be "liberally construed, with a view to substantial justice between the parties."

The case of Hannah v. R. R., 87 N.C. 351, relied upon by the defendant's counsel, is really, it seems to us, an authority against him. There the plaintiff alleged that he had been wrongfully put off the cars after having bought and paid for his ticket. The Court held that it was an action for tort, but that, the plaintiff having died before judgment, the action abated as to the punitory damages for the technical assault (The Code, sec. 1491 [2]), and that, treating it as an action ex contractu to recover the price of the ticket, the amount stated was within the jurisdiction of a magistrate. The demurrer to the jurisdiction, and for failure to state a cause of action in the present case, is based entirely upon the alleged insufficiency of the complaint, treating this as an action on contract. The measure of damages, treating it as an action in tort, is considered in the plaintiff's appeal.

Per Curiam.

No error.

Cited: Hood v. Sudderth, 111 N.C. 222; Brooks v. R. R., 115 N.C. 625;Hansley v. R. R., ib., 614, 618; S. c., 117 N.C. 568, 572; Solomonv. Bates, 118 N.C. 315; Cable v. R. R., 122 N.C. 900; Thomas v. R. R.,ib., 1006; Richardson v. R. R., 126 N.C. 102; Carter v. R. R., ib., 442;Smith v. R. R., 130 N.C. 312; Story v. R. R., 133 N.C. 62; Wilson v.Brown, 134 N.C. 407; Coleman v. R. R., 138 N.C. 354; Hutchinson v. R. R., 140 N.C. 127; Wilson v. R. R., 142 N.C. 340;Blackmore v. Winders, 144 N.C. 216; Williams v. R. R., ib., 503; White v.Eley, 145 N.C. 37; Stewart v. Lumber Co., 146 N.C. 69; Peanut Co. v. R.R., 155 N.C. 153, 157; Bank v. Duffy, 156 N.C. 87; Brown v. R. R.,174 N.C. 696.

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