Boehrer v. Juergens & Anderson Co.

, WxNslow, J. The question whether this complaint is in contract or tort was somewhat discussed upon the argument and may admit of some doubt. It will be noticed that a contract of bailment is set forth, and it is alleged that one of the implied provisions of the contract was that the value of the package should be marked upon it when delivered to the express company for carriage upon its return, but that the defendant failed and neglected so to do. Eroni these allegations it is argued that the complaint is plainly on contract; but it is also to be noticed that the defendant’s default is characterized as a negligent and careless disregard of duty, and that the damage to the plaintiff was the result of such negligence and breach of duty — expressions which are more appropriate to the statement of a tort than to the statement of a mere breach of contract. "Where a given default may constitute both a breach of contract and a tort, and the complaint contains apt allegations charging the default in both aspects, the question as to how the complaint should be construed becomes sometimes difficult. The true and logical test would seem to- be that if it appears by the whole complaint that the contract is alleged chiefly or wholly by way of necessary inducement in order to show the existence of a duty, and the emphasis is laid upon wilful or wrongful disregard of this duty, the intent is to charge a tort; while if the contract appears to be stated as the basis of the action, and the emphasis is laid not upon the wilful or negligent breach of duty, but upon default in carrying out the contract, the intent is to charge a mere breach [430] of contract. The question has frequently arisen in actions against common carriers where it becomes necessary to set forth the contract of carriage in order to show that the defendant was charged with the responsibilities of a common carrier, and the rule above stated seems to he the fair result of the authorities. Brown v. C., M. & St. P. R. Co. 54 Wis. 342, 11 N. W. 356, 911; Rideout v. M., L. S. & W. R. Co. 81 Wis. 237, 51 N. W. 439; McKeon v. C., M. & St. P. R. Co. 94 Wis. 477, 69 N. W. 175. Practically the same principle has been applied to an action by a patient against a physician for malpractice. Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228. It does not become necessary to classify this complaint upon this appeal, for the reason that whether it be construed as upon contract- or on tort the sole material question presented is whether it appears therefrom that the defendant’s failure to state the value of the goods according to the custom when it delivered the package to the express company was the proximate cause of any damage to the plaintiff. It could only be such proximate cause by reason of the fact that the plaintiff lost or was deprived of some remedy against the express company because the value was not stated. If the express company owed the same degree of care to the plaintiff in the transportation of the goods whether the value was stated or not, then the omission to state the value has deprived the plaintiff of no remedy against the express company and cannot be the cause of any damage." The general rule of law is that express companies are common carriers, and in the absence of contract limiting their liability are insurers of the safe delivery of goods which they receive for carriage. 12 Am. & Eng. Ency. of Law (2d ed.) 546; Marshall v. Am. Exp. Co. 7 Wis. 1. It is not alleged that there is any custom by virtue of which the stating of the value of the goods enlarges their liability. .It cannot be assumed, in the absence of allegation, that the defendant entered into any [431] contract limiting the liability of the carriers. Hence the complaint fails to show any act or defanlt on the part of the defendant which proximately caused any damage to the plaintiff. By the Court. — Order reversed, and action remanded for further proceedings according to law.