Rushin v. Central of Georgia Railway Co.

Evans, J. A passenger injured while on the cars in the progress of his journey by'the negligence of the carrier has two remedies: one an action for the breach of the contract; the other an action on the case, for thé wróng; and he may elect which remedy he will pursue. Patterson v. Augusta R. Co., 94 Ga. 140. Of course he can not join both c&uses of action in the same suit; if he does so, an appropriate demurrer will require a dismissal of the petition for duplicity, unless the duplicity is removed by an amendment eliminating the allegations inappropriate to the remedy elected. A petition is not necessarily duplicitous because of some inconsequential or inapt expression, which may not be strictly pertinent to the ease therein made. Our statute does not require the plaintiff to state his case with all the liiceties' and refinements of special pleading; it is satisfied when he plainly, fully, and distinctly sets forth his charge, ground of complaint and demand, and the name of the person against' whom process is prayed. In stating the narrative of facts upon which a recovery is sought it is common, especially in actions'of this kind, for the plaintiff to state matters from which it appears that he may have another cause of action, either by way of amplification or as strengthening his description [729] -of the cause of action on which he relies, when it is obvious he does not rest his claim 'of recovery upon them. ■ These superfluous statements are but surplusage; they mar the symmetry of the petition, but do not destroy it by making it double. In the case of Seals v. Augusta Sou. R. Co., 102 Ga. 817, the action was against the railroad company for wrongfully carrying a passenger beyond the station to which she purchased her ticket. The petition alleged a contract of carriage and its breach, and the insistence of the railroad company was that the suit was thereby rendered one upon the contract. This court, however, held that the character of the plaintiff’s suit depended, not upon a single allegation independently construed, but upon a consideration of the whole petition. The structure of the petition in the present case clearly shows the action to be ex delicto. It is true that the plaintiff alleges with great particularity a contract of carriage; but this allegation is a mere matter of inducement to show the public duty which the carrier owed to the plaintiff. As was said in the Seals case, “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 fourth, fifth, sixth, seventh, and eighth paragraphs contain allegations entirely appropriate to an action for a breach of public duty. The claim of damages for physical pain and suffering, and for careless and willful conduct of the defendant’s employees, plainly shows that the plaintiff is suing for the tort, and not for the breach of the contract. But it is contended, that, even after paragraph thirteen was amended, there remained an allegation that the defendant had violated the terms of the contract to safely carry the plaintiff. This expression, however, when taken in connection with the other allegations of the same paragraph, shows that the plaintiff made reference thereto, not for the purpose of declaring on the breach of the contract, or uniting any action which he might have for failure to safely transport with that for which he sues, but to show that his injuries were caused by the negligence of the defendant’s employees in the violation of its public duty growing out of the contractual relation of passenger. We have carefully examined the petition, and do not [730] believe that it was open to the criticism of duplicity which was raised by the special demurrer. The general demurrer was also sustained and the petition dismissed. As amended the petition stated a case of a passenger who was wilfully injured by an employee of the carrier. Surely no argument is needed to prove that the plaintiff is entitled to recover upon a ease such as is here stated. In the brief of the defendant our attention was directed to the cases of Hardwick v. Georgia R. Co., 85 Ga. 507; Ham v. Georgia R. Co., 97 Ga. 411; Murphy v. Atlanta & West Point R. Co., 89 Ga. 832, which are claimed to support the contention of the railroad company that no cause of action is set out in the petition. The plaintiff in each of these eases had his hand injured by the slamming of a ear door, but under entirely dissimilar circumstances from those alleged in the petition in the present case. In none of them was it alleged that the carrier’s servant wilfully injured the plaintiff. The court erred in dismissing the petition on general demurrer. Judgment reversed. [731] delivered to T. J. Marshall a deed to a certain lot of land in Macon County, Georgia, the land in controversy. .While this deed was in form an unconditional warranty deed, it is conceded by both sides that it was intended as a deed to secure the payment of-a debt, Marshall executing to Ogburn his bond for titles to re-convey the property upon the payment of the debt. Ogburn remained in possession of the premises until his death, which occurred some time during the }?ear 1885. According to the testimony of the plaintiff in error, Ogburn’s father remained in possession of the land for two years longer, till 1887. During the latter year, one Glover, administrator of Ogburn, deceased, entered into an agreement with Marshall, the grantee in the security-deed, whereby said administrator agreed to surrender the bond fortifies to said land, and Marshall agreed to take the land in settlement of the debt which the deed had been given to secure. Accordingly the notes held by Marshall against Ogburn, deceased, were turned over to the administrator, marked, “Settled by purchase of lot of land No. 100 in 13th district of Macon County, Georgia” (the-land in controversy). And thereupon Marshall went into possession of tlie land. This sale was made without order of court, and. no writing was signed except that noted above. Subsequently, in September, 1904, English qualified as administrator de bonis non of said Ogburn, and proceeded, after obtaining an order from the court of ordinary, dated December term, 1904, to advertise for sale-the land above described, as the property of said Ogburn, deceased.. Before the land was sold, on December 3, 1904, T. J. Marshall filed a claim to the property. Pending the trial of this claim said Marshall died, and his executors, T. P. Marshall and C. P. Marshall, were made parties, and the ease proceeded to trial before a. jury. At the conclusion of the evidence for both sides, the court, directed a verdict for the claimant. The plaintiff moved for a new trial, which motion was overruled, and he excepted. [730] All the Justices concur.