Moore v. Spurrier ( 1899 )

The opinion of the Court was delivered by

Mr. Justice Gary.

Upon the trial of this case in the Circuit Court, defendants interposed a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, in the following particulars: “1. For that the cause of action, alleged in the complaint, being a tort, or torts, committed, it is alleged, by F. M. Spurrier, the intestate, during his lifetime, against the property of Moore and one Rush, does not survive against the administrator — the action being an action ex delicto, to recover damages against the estate of intestate for such alleged tortuous acts. 2. P'or that the cause of action alleged in the complaint being a tort, does not survive, and cannot be assigned by Rush to Moore. 3. That by reason of the non-survival 'of 'the cause of action' alleged' in the com'plaint, the surety is released thereby.” His Honor, the 'Circuit Judge, sustained the demurrer, whereupon the plaintiff appealed upon exceptions, raising practically the single question whether the cause of action survived against the representative of Francis M. Spurrier, mentioned in the complaint, which will be reported. Even conceding that the allegations of the complaint are appropriate to a cause of action arising ex delicto, it is manifest that they are also appropriate to a cause of action for a breach of -the bond or undertaking described in the complaint, which arises ex contractu. The rule .is well stated that a complaint should not be dismissed on demurrer, when its allegations show that the plaintiff is entitled to any relief whatever; and as, in this case, the plaintiff was entitled to relief ex contractu, the presiding Judge erred in dismissing" the complaint.

Judgment reversed.