Wood v. Virginia Hot Springs Co. , 202 Pa. 40 ( 1902 )

Opinion by

Mr. Justice Potter,

We do not understand that counsel for appellant in this case questions the established rule that foreign attachment is a remedy for the recovery of debts or damages arising ex contractu, and that it does not lie for a demand founded in tort. The contention is rather that the plaintiff has waived the tort, and is claiming in assumpsit. But we cannot so interpret the cause of action as set forth in the plaintiff’s affidavit.

It alleges that the defendant operated, controlled and managed a public hotel in the state of Virginia, at which plaintiff was a guest. That not regarding its duties as such hotel or innkeeper, it did not keep plaintiff’s jewelry and wearing apparel safely and without loss to plaintiff, but on the contrary, defendant and its servants so negligently and carelessly behaved and conducted themselves that the hotel caught fire, and the jewelry and wearing apparel of plaintiff was wholly destroyed.

We cannot agree that the element of negligence has been dismissed from the case. There is no allegation of an agreement to deliver goods of any certain definite quality or value, but the defendant is charged with such negligence or carelessness as resulted in the destruction of a large number of articles of wearing apparel, partly worn and of uncertain value, only to be fixed by the uncertain verdict of a jury. It is evident therefore that the cause of action is the negligent and careless management of the hotel. It is equally plain that the demand in this case is not for a debt, which is “ a sum of money due by certain and express agreement,” but it is a claim for unliquidated damages, and it will not therefore support a foreign attachment.

We see no error in the action of the court below in making absolute the rule to dissolve the attachment.

The judgment is affirmed.