187 N.Y. 388 | NY | 1907
This action was brought to recover damages for defendant's failure to properly transport plaintiff over its road in the city of New York. The real, substantial element of damages is an alleged assault upon and maltreatment of plaintiff by one of defendant's employees after the former had passed through the gateway on to the platform of one of defendant's stations for the purpose of taking a train, and the sole question is whether the action is one of contract or of *390 tort. This inquiry is of controlling importance, since the Municipal Court where the cause originated had jurisdiction of an action of the former character and did not have jurisdiction of one of the latter kind.
I think that the learned Appellate Division correctly held that the action was one in contract and that plaintiff's judgment should be affirmed.
Naturally the first and most important step to be taken in determining this question is an examination of the complaint. The allegations of this which are important read as follows: "Second. That on the 7th day of January, 1905, this plaintiff became a passenger of the defendant for the purpose of being carried upon one of its cars * * * and in consideration of the sum of five cents (5c.) duly paid by this plaintiff to the defendant, the defendant promised and agreed safely to carry this plaintiff and to treat him properly and carefully.
"Third. * * * That the defendant through its agents and employees, wrongfully, illegally and in violation of the terms of said contract, assaulted the plaintiff," etc.
The trial proceeded under this complaint, and evidence was produced which, without recapitulating it, is assumed upon this appeal to have been in accordance with and in support of the allegations of the complaint. In the presence of a unanimous affirmance we must assume that there was evidence to support the verdict and, in the absence of some objection, we may presume that such evidence followed the pleadings.
Therefore we have the allegations established by proof of a promise and agreement to do certain things, of the violation of the "terms of said contract," and of the manner in which the violation occurred. These allegations, in so far as they affect the point under consideration, are not modified or supplanted by any others, and I fail to see how a complaint could much more directly impress upon an action the character of one in contract than does the pleading before us. It certainly was possible for the defendant to make a contract "safely to carry this plaintiff and to treat him properly and carefully," and we must accept the allegation that it did so. Having *391 done this it was possible for it to commit a "violation of the terms of said contract," and this is properly alleged. And finally there is no room for doubt or need for authorities that all or some of the wrongful acts of defendant's servant which are alleged as constituting such violation did in fact amount to a breach of the alleged specific contract "to safely carry" plaintiff and to "treat him properly and safely." Nothing more occurs to the mind in the way of allegations which was necessary to establish the character of the action as one for contract which had been broken to plaintiff's damage.
Probably little or no doubt would have arisen as to the form of the complaint or the nature of the action if there had been alleged and proved some act constituting a familiar breach of contract; but the fact that this action was brought to recover damages largely caused by acts ordinarily treated as torts has cast a suspicion upon its character which, however natural, is not confirmed by legal analysis.
It is no bar or answer to the claim of an action in contract that one in tort might have been, and ordinarily would be, brought for the acts really complained of. The dividing line between breaches of contract and torts is often dim and uncertain. There is no definition of either class of defaults which is universally accurate or acceptable. In a general way a tort is distinguished from a breach of contract in that the latter arises under an agreement of the parties, whereas the tort ordinarily is a violation of a duty fixed by law, independent of contract or the will of the parties, although it may sometimes have relation to obligations growing out of or coincident with a contract, and frequently the same facts will sustain either class of action. (Rich v. N.Y.C. H.R.R.R. Co.,
And so while it may be conceded that, independent of any express promise or agreement, the defendant would have been subject to duties and obligations in favor of plaintiff, the violation of which by the acts complained of in this case would have amounted to a tort, that is not at all decisive that this action was not and could not be brought in contract. *392
Independent of what seems to be the plain logic of the case, the question before us appears to be fairly well settled by authority.
Thompson on Negligence (Sect. 3186) says: "A carrier is liable absolutely as an insurer for the protection of a passenger against assaults and insults at the hands of his own servants, because he contracts to carry the passenger safely and to give him decent treatment en route. Hence, an unlawful assault or an insult to a passenger by his servant is a violation of his contract by the very person whom he has employed to carry it out."
Hart v. Metr. St. Ry. Co. (
Hines v. Dry Dock, E.B. B.R.R. Co. (
In Miller v. King (84 Hun, 308) damages were sought for the unlawful ejection of plaintiff from one of defendant's cars while he was a passenger, and it was held "that there was a plain breach of contract of which the ticket was evidence."
Stewart v. Brooklyn C.T.R.R. Co. (
The case of Dwinelle v. N.Y.C. H.R.R.R. Co. (
Gillespie v. Brooklyn Heights R.R. Co. (
Many other cases I believe may be cited which are in accord with the doctrine outlined in the above authorities. It is possible that at times the court or the text writer may not have had present in mind the somewhat shadowy distinction sometimes drawn in the case of a common carrier between its contract obligations and its legal duties. It is also true that the learned counsel for the appellant has cited us to one or two authorities seeming to him to establish a contrary doctrine to that here adopted, and has attempted to distinguish the cases above referred to from the one at bar. But considering all that has been called to our attention, it seems to me that the great weight of authority is plainly in favor of the proposition that an action as for a breach of contract may be laid upon the facts alleged and proved in this case, and that the action before us is much stronger for the plaintiff upon this point than most of those referred to because the complaint plainly and completely adopts the form of an action upon contract rather than of tort.
The judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, VANN, WERNER and CHASE, JJ., concur.
Judgment affirmed. *395