City & Suburban Railway v. Brauss , 70 Ga. 368 ( 1883 )

Hall, Justice.

The errors alleged to have been committed in the progress of this trial may be conveniently considered under two general heads:

(1st.) Is this an action for a tort, or an action upon a contract? Or is there a joinder of the two in different counts of the declaration, or a commingling of both in any of the separate counts ?

(2d.) If these defects do not exist, did the court, in its charge, lay down the proper rules for measuring the damages, under the testimony; and was the finding of the jury so excessive as to excite suspicion that it was the result of such gross misapprehension or undue bias upon their part as to authorize the judge, in the exercise of a sound discretion, to set it aside and order anew trial?

1. Wrongs are divided into criminal and civil, and the latter are subdivided into the two classes of wrongs ex contractu and wrongs ex delicto ; the former being such as arise out of the violation of private contracts; the latter, commonly called torts, such as spring from infractions of the great social obligation, by which each member of the state is bound to do hurt to no man. Moak’s Underhill on Torts, pp. 3 and 4.

In actions upon cases where the contract has been induced, for instance, by the fraud of the defendant, the party injured may either waive the tort and sue upon the contract, or he may proceed for the wrong. (Code, §§2955, 2956); and in that event, the contract will not be counted on, thoifgh it will be necessarily shown, in order to make it appear how the wrong was injurious. The tort, in such a case, is connected with the contract only as it enabled the tort feasors to bring the party wronged into it Cooley on Torts, p. 90, and cases cited in notes 1 and 2 there. Code, §2951. If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded upon a contract. 1 Addison on Torts, §27. And in such a case, “the liability arises out of a breach of duty incident to, and created by, the contract; but it is only dependent upon the contract to the extent necessary to raise the duty. The tort consists in the breach of duty.” Ib., note 1. Private duties may arise from statute, or flow from relations created by contract, expressed or implied. The violation of any such specific duty, accompanied with damage, gives a right of action. Code, §2954.

Tested by these principles, this is certainly not a suit to enforce a contract. Both the counts in the declaration set forth the duty imposed by the contract, and allege its breach in this respect; they also allege the facts that show the wrong from which the law will presume damages to flow. They aver no special damage in any form, and do not even give the terms of the contract specifically.

To this action, the defendant pleaded not guilty, which would not be an appropriate answer to an action ex contractu, but is the proper answer to one ex delicto. There was no demurrer to this declaration; but the defendant waited until the plaintiff had closed his evidence, and then moved to non-suit and dismiss said action, upon the ground that it appeared, from the evidence and petition filed, that the complaint was for an alleged wrong done by defendant’s violation of As contract; that the case, as presented, was a case arising on contract, and that no actual pecuniary loss or damage was proved, and that'the only damage claimed was exemplary damage for alleged injury to plaintiff’s feelings; which motion was overruled.

Waiving, for the present, the discussion of the character •of the damages which the plaintiff was entitled, under his pleading, to prove and to recover, we think, as we have before shown, that this is an action ex delicto, founded upon the failure of the defendant to perform a duty imposed by its contract, and that the plaintiff was entitled to recover damages in consequence of this breach of duty, and that the motion was properly overruled.

2. We are next to consider what was the rule for estimating the damage in this case, and whether, for a breach of such a duty, nothing more than the actual pecuniary loss can be recovered, or whether the plaintiff is entitled to have compensation for his wounded feelings, in consequence of the indignity put upon him. The determination of these questions will dispose of most of the questions made in this case. Let it be borne in mind that the plaintiff had a right, according to the tickets which he presented, to be transported on the defendant’s lines of road, from the point at which he entered its cars to his place of destination, and that it was the duty of the defendant to transfer him from one of its lines to another as often as it was necessary to reach the end of his ride; that he was actually transferred by the conductor of the Abercorn to the Liberty street car. It is true he had no transfer ticket, nor did he know that it was necessary for him to apply to the conductor for one ; he had, however, stated to the conductor of the first car he entered, where he wished to go. The conductor ought to have known if it was necessary to have this transfer ticket, to reach his destination, and should have furnished it. He made the transfer, however 5 without doing this, and after this conversation, the plaintiff had a right to act upon the assumption that all had been done that was necessary to secure his passage; and seeing that such was his impression, the conductor should-have furnished the transfer ticket without any further request. It would be going very far to require a passenger to specify to the agents of the company what means and appliances were necessary to the accomplishment of the end he had in view; it is the duty of these agents to supply the tickets necessary, under such circumstances. The plaintiff was not in fault, and he should not be made to suffer for the negligence of the defendant’s agents. He was properly on the cars with his wife, and had a right to be there until he reached his destination. The demand made on him for his fare resulted from the wrongful neglect of one of defendant’s conductors, and it can make no difference, so far as concerns the duty the company owed him, that it was violated by another conductor, who was unapprised of the actual facts in the case. It was the duty of the first conductor to have communicated to him this information. But it is not clear that he was without fault, for there is sufficient evidence to show that the plaintiff was transferred to his car, and he was so informed by the conductor when the transfer was made. The jury had a right to presume that he had this information, or might have had it, if he had paid proper attention to what was passing, and that it was his duty to take notice of the fact. His failure in this respect put the company in the wrong; and in putting the plaintiff off the car, they are chargeable with a breach of duty which their contract with him imposed. The circumstances under which .he was put off, and the place where he and his wife were - landed, were well calculated to wound the feelings and mortify the pride of any man of ordinary sensibility. In every tort there may be aggravating circumstances, either in the act or the intention, and in that event, the jury may give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff. Code, §3066.

This provision of our Code is as applicable to the conductors of street cars as to the conductors of railways. It is •comprehensive in its terms, and embraces every tort of every character and description, committed by every kind of wrong-doer, and visits upon the offender exemplary damages, or damages to compensate for wounded feelings. Surely, it cannot be seriously insisted that there was nothing calculated to wound feelings in the j)laintiff and his wife being ordered from the car, in the presence of a number of strangers, and landed in the mud in the middle of the street, when there was a good crossing in close proximity ! That there was nothing in this indignity, to characterize it as mildly as possible, that was not well calculated to excite in the beholders thoughts of a very prejudicial and derogatory character to the persons thus dealt with ! Is there no aggravation in this act, apart from any intention in the wrong-doer, to excite such unpleasant reflections, and thus inflict a wound upon the feelings, entitling the party to compensation in damages ? Is there anything in such conduct on the part of a conductor of a public street railway car to shield him from exemplary damages, in order to prevent the repetition of such offences ? Should not a salutary lesson be taught, through this verdict, to impress the necessity of caution upon these persons dealing so largely with the public ? These questions have been answered affirmatively by this court in the well considered case of Gasway vs. The Atlanta and West Point R. R., 58 Ga., 216. The court below committed no error in the rule of damages laid down in his charge, nor in overruling objections to the plaintiff’s testimony that his feelings were hurt. The law applicable to the circumstances entitling plaintiff to this action was correctly laid down.

There was no abuse of discretion in refusing to set aside the verdict and grant a new trial, upon the ground that the damages found were excessive. To authorize such interference as was invoked, the damages should have been so excessive as to lead the court to infer that they were the result of bias or prejudice upon the part of the jury. Code, §§3067, 2947.

The portion of the verdict that found attorneys’ fees, without specifying the amount, was illegal and without meaning, and may, and doubtless will, be disregarded by the court below, in rendering its judgment thereon, (Code, §§3491, 3493; Steed vs. Cruise et al., February term, 1883, not yet published,) if, indeed, this has not been already done.

Authorities cited for plaintiff in error-: Code, §§2951, 2201, 2203; 15 Am. R., 119; 8 Ib., 311; 2 Ib., 39; 53 N. Y., 25; 58 Ga., 216; Pierce, R. R. Law, 491, 492; Code of 1873, §2082; Wait’s Actions and Def., 88 (8), 89; Code, §§3034, 3066, 3067, 2951, (2 and 3), 2953, 2943; 30 Ga., 246, 247; 48 Ib., 565; Code, §§3073, 3065, 3070; 56 N. Y., 295; 54 Wis., 234.

For defendant in error: 11 Ga., 137, 140, 141; 4 Am. Dec., 475 (a); 1 Sutherland Dam., 158; 53 N. Y., 25; 13 Rep., 542; 9 Am. R., 434, 435; Sutherland Dam., 749, 750; 2 Am. R., 39, 42, et seq.; 8 Ib., 305, 310.

Judgment affirmed.