Rideout v. Milwaukee, Lake Shore & Western Railway Co.

LyoN, C. J. The first count in the complaint states a cause of action ex deUeto. If the second count also sounds in tort, there is no misjoinder of .causes of action, and the demurrer was properly overruled; otherwise, it should have been sustained. Hence the controlling question is, Does the second count state a cause of action ex delicto? We think it does. True, it sets out the contract of carriage, but the grmamen of the claim is the breach of duty by the railway company in that it so negligently and carelessly carried the horses that they were injured and one of them was killed. This court has held, several times, that complaints similarly drawn stated causes of action ex delicto. Brown v. C., M. & St. P. R. Co. 54 Wis. 342; Nelson v. Harrington, 72 Wis. 591. See, also, Wood v. M. & St. P. R. Co. 32 Wis. 398; Smith v. C. & N. W. R. Co. 49 Wis. 443. By the Court.— The order overruling the demurrer is affirmed.