Seals v. Augusta Southern Railroad

Fisi-i, J. There was no merit in the first ground of the demurrer, which alleges that no cause of action is set forth in the plaintiff’s petition. The second ground, that the plaintiff was .a minor and the suit should have been brought by a guardian, was removed when the petition was, by the consent of the defendant and the order of the court, amended by inserting therein the name of Robert B. Seals as next friend of the plaintiff, suing for her use. 1. The third ground of the demurrer is, that the petition sets forth a breach of contract, and that the damages claimed by the plaintiff to have been sustained by her “are punitive and are for torts, and arise ex delicto, and can not be recovered in an action for a breach of contract.” The demurrer embraced .a motion that these paragraphs “ be stricken and that the plaintiff in her recovery be restricted to the actual damages flowing directly from the breach of the contract sued on.” It was also .alleged under the third ground of the demurrer that “said damages are too remote and can not be recovered.” Using the language of Chief Justice Bleckley, in Central Railroad Co. v. Roberts, 91 Ga. 519, “In such an action as the present, where it is well founded, a recovery may be had for the injury as a [820] tort, as a breach, of a public duty by a common carrier—a duty imposed by law, though involving in this breach a breach of contract also.” See also, City & Suburban Ry. v. Brauss, 70 Ga. 868; Central Railroad Co. v. Pickett & Blair, 87 Ga. 734. There is no question that the plaintiff could have brought suit for a breach of the contract. The question, therefore, presented by this ground of the demurrer is, whether the petition of the plaintiff is an action for a breach of the private contract, or an action for a tort arising out of the breach of the public duty that the defendant owed to the plaintiff as one of its passengers. This question, we think, should be decided by construing all the allegations of the declaration together. In determining whether the action is ex contractu or ex delicto, we should not pick out particular paragraphs or allegations of the petition and consider them as being isolated from all the others contained therein, but each of them should be construed in the-light of its natural and logical relations to all of the others. So construing the petition, what was the cause of action upon which the plaintiff relied for a recovery? Was it a breach of the contract, or a breach of the legal duty incident to and created by the contract? While there is a general allegation in the first paragraph of the petition that the defendant has-injured and damaged the plaintiff in the sum of one thousand dollars, there is no allegation as to damages sustained in the-second or third paragraph, which are the only ones which set forth a contract of carriage or allude to such a contract, nor any claim there, or elsewhere in the petition, that the plaintiff had been injured and damaged by reason of a non-compliance by the defendant with the implied terms of the contract. But the-plaintiff, after setting forth in these paragraphs facts which show an implied contract on the part of the defendant to carry her from Augusta to Beall Spring station, and to stop the train, upon which she was being transported, upon its reaching the-latter point, in order that she might get off, alleges, in the third paragraph, “that the train did not stop at the Beall Spring station, at which place she had intended to get off, and to which place she had purchased her ticket, but the train was run past the station at full speed, and . . petitioner was. [821] ■carried, against her will, to Mitchell, Georgia, to her great mental suffering, annoyance and personal inconvenience.” This seems to clearly indicate that the plaintiff was suing for the tort; and the further particulars wherein she alleges that she was damaged, as set forth in the paragraphs which follow, are perfectly consistent with this view of the case. Some of the paragraphs demurred to, all of which the demurrer avers show that the damages therein claimed “are punitive and are for torts and arise ex delicto,” wind up with the averment, or its ■equivalent, “all to the damage of your petitioner in the sum ■of $1,000.” It is necessary for a person suing a common carrier for damages arising out of the violation, as to him, of the public duty which it owes to a passenger, to allege facts showing that, at the time of the commission of the alleged tort for which he seeks to recover damages, he sustained toward the defendant carrier the relation of a passenger. In this case, without the existence of a contract of carriage, the defendant would have owed no duty to the plaintiff as its passenger; and as it was necessary for her to show such a duty on the part of the defendant, as a basis from which the tort, for which she sought to recover, could have arisen, it .was proper and necessary to allege facts sufficient to show an implied contract by the defendant to transport her from her point of departure to her point of destination and to allow her, upon arrival at the latter, an opportunity to safely alight from the cars. As the allegations of the petition seem to show an intention on the part of the plaintiff to sue for the recovery of damages sustained by her in. consequence of the breach of the public duty arising out of the contract of carriage, and not for damages resulting from a breach of the contract, those allegations which set forth the contract may well be taken as simply intended to-lay the foundation for the introduction of evidence to show the existence of this public duty, preparatory to the introduction of further testimony to establish a violation of that duty amounting to the tort, which appears to be the real gist of the action. The essential facts which seem to be relied upon for a recovery constitute a tort. Certainly, as against the demurrer filed by the defendant, the portion of the petition which [822] sets forth the contract of carriage may be treated as mere matter of inducement, leading up to the real gravamen of the suit— the tort founded upon the contract. 2. The special demurrer did not make the point that the petition should be dismissed on the ground of duplicity, nor for any other reason, but, after characterizing it as an action ex contractu, containing paragraphs seeking to recover damages arising ex delicto, “prayed” that these particular paragraphs be stricken and that the plaintiff, in her recovery, “be restricted to the actual damages flowing directly from the breach of the contract sued on.” Even if the petition were to some extent ambiguous in not showing whether the suit was for a tort or a breach of the contract, it would have been error for the court to have dismissed it upon this demurrer. According to the opinion of this court in the case of Central Railroad Co. v. Pickett, 87 Ga. 736, if the petition had been subject to the charge of duplicity in the respect above indicated, and the defendant had demurred to it upon that ground and had sought for that reason to dismiss it, the court below should either have dismissed the case or required the plaintiff to so shape her allegations as to leave no doubt of the manner in which she sought to hold the defendant liable. 3. It is further alleged, in the third ground of the demurrer, that “said items of damage are too remote and can not be recovered.” As these items of damage include all damages alleged to have been sustained by reason of the breach of the dutjr which the defendant owed the plaintiff as its passenger, ■ if, in any of the paragraphs demurred to, there are damages claimed which may properly be said to have arisen from the alleged tortious conduct of the defendant, a demurrer which by its sweeping terms covers every item of alleged damages can not be sustained. ' To sustain such a demurrer would be to hold that all of the damages claimed are too remote. It is too apparent for discussion, that if the allegations which set forth the tort complained of are true the plaintiff is entitled to recover some damages on this account. Certainly she would be entitled to recover for any inconveniences, physical hardships, or sufferings, which were not needlessly incurred by her, but [823] which were the proximate result of the tort committed by the defendant, and it is equally clear that the petition contains allegations which cover such items as these. If any of the items of alleged damages are too remote to constitute the basis of a recovery, the same should have been specifically pointed out in the demurrer. Judgment reversed. All the Justices concurring.