79 Ga. 358 | Ga. | 1887
The amendment proposed did not substantially strengthen the case set out in the original declaration, and while it was not an improper amendment, the court perhaps ought not to be reversed for disallowing it. But we think it was error to cut off the plaintiff from the recovery of such damages of every Idnd as he sustained. His declaration was not in contract, but in tort; it was an action upon the case for a wrong, not an action of assumpsit for the breach of a contract. It went upon the theory that the contract established the relation of carrier and passenger, a relation attended with a duty from the former to the latter, and that the duty was wrongfully violated. Where the plaintiff has a contract with the defendant which generates a relation attended with a public duty, he has his option to bring assumpsit for breach of the contract, or case for breach of the duty. Here the plaintiff brought a proper action, the contract being set out merely as inducement, with a view to raise the relation, the stress of the action being put upon his expulsion from the train, which, if wrongful, was not only a breach of the contract, but a violation of a public duty by a common carrier. The court erred in sustaining the demurrer and ordering the action to proceed for the recovery of actual damages only; actual damages in the sense in which the phrase has now come to be used frequently in Georgia, a sense supposed to exclude damages for wounded feelings, though sections 3066 and 3067 of the code, properly construed, do not require so restricted an interpretation. Wounding a man’s feelings is as much actual damage as breaking his limbs. The difference is, that one is internal and the other external, one mental, the other physical. in either case the damage is not measurable with exactness. There can be a closer approximation in estimating the damage to a limb than to
Looking into the evidence, we find that this passenger purchased a ticket at Tallapoosa, which was to this effect: Special contract. Good for one first-class passage to New Orleans' and return when officially stamped and dated on back hereof and presented with coupons attached. In consideration of reduced rate the passenger agrees: (1) Company not responsible beyond its own line, only agent for other lines; (2) ticket not transferable; (3) any alteration of the ticket renders it void; (4) ticket not good for outward passage, except within ten days from date of sale as stamped on back and written below; (5) not good for return passage unless holder identifies himself as original purchaser to satisfaction of authorized agent of Queen & Crescent Route at New Orleans, within ten days from date of sale; and when officially signed and dated in ink and duly'stamped by said agent, then good only
There appears, in the execution of this ticket, to be two irregularities: first, the stamp is on the wrong margin;
Judgment reversed.