5 Pa. Super. 21 | Pa. Super. Ct. | 1897
Opinion by
A tort is generally defined to be “ a wrong independent of contract,” but this broad definition, when correctly understood, is entirely consistent with the well settled general proposition that in certain relations duties are imposed, the breach of which is regarded as a tort, though the relations themselves are formed by contract, and the contract may cover the same ground. “ Thus ” says Judge Cooley, “ the general duties of a common carrier are prescribed by law, and a failure in performance is a tort, though there is in every case of the delivery of property for carriage an express or implied contract covering the terms. The case is similar as between the innkeeper and his guest as regards the goods the one intrusts to the other for keeping, and between the professional man and his patient or his client, as to whom the relation itself imposes the duty of integrity and fidelity in respect to all dealings which come within it: ” Cooley’s Elements of Torts, 25. “ In like manner,” said the Supreme Court of Indiana, in a recent well considered case strikingly similar to the present in its facts, “ it has been held that telegraph, telephone, water, and other like companies, that have received from public authority franchises which also provide for the accommodation of the general public, owe a duty to serve all persons who make, proper application for such service, and who comply with such reasonable rules as -pray be fixed and make such reasonable compensation as may be ftequired. Persons or corporations enjoying such public franchises, and engaged in such public employment, are held in return to owe a duty to the public as well as to all individuals of that public who, in compliance with established customs or rules, make demand for the beneficial use of the privileges and advantages due to the pub-
The defendant’s remaining propositions' are as follows: (1) The damages which the plaintiff seeks to recover, namely, for the death of her husband, are too remote — they were not the natural and probable consequence of the defendant’s breach of contract or duty; (2) even if such breach did in -the least contribute to cause the death of the plaintiff’s husband it was not the efficient and proximate cause; (3) in any event there was no testimony to show that the turning off the gas was the cause either proximate or remote, of her husband’s death, and, therefore, the court should have directed a verdict for the defendant. These propositions may be considered together. The facts as alleged by the plaintiff were that her husband had been taken ill on October 27,1891, and was threatened with typhoid fever or typhoid pneumonia; that on November 3d he had so far recovered that his physician deemed it unnecessary to make further visits, and gave him permission to sit up bn the following day; that he sat up on November 4th for a short time, and on November 5th arose about eight o’clock; that about half past eight the gas was turned off withoht warning, and he went back to his bed; that the plaintiff made ineffectual efforts to learn from the company the reason why the gas was turned off.
Judgment affirmed.