104 Ga. 692 | Ga. | 1898
The plaintiff’s petition alleged: The defendant made a contract with petitioner to work for it in its yards in the city of Cincinnati, Ohio. “Under the terms of said contract, defendant was to furnish petitioner transportation to the city of Cincinnati, and pay all of his expenses going to said city and while remaining in said city until [the defendant] gave him work; and if he was not willing to work after getting to Cincinnati, defendant was to furnish him transportation back to the city of Atlanta, Ga., and pay him for all the time in going and returning.” In pursuance of this contract, he was conveyed to Cincinnati at the defendant’s expense and lodged in a hotel, but, on account of temporary illness, was denied employment and forced to leave the hotel. He then demanded of the defendant a ticket which would bring him back to Atlanta, and the same was refused. Being without money, he was forced to walk back to his home in Atlanta, a distance of several hundred miles, and in so doing suffered much from pain, weariness, and blistered feet. On the trial the plaintiff introduced evidence tending to support the allegations of his petition, and obtained a verdict for $370.00. The case was tried as an action ex delicto. The court permitted the plaintiff to prove, as elements of damage, the pain and weariness he suffered during his journey on foot between Cincinnati and Atlanta, and, in this connection, the fact that his feet, because of this walk, were blistered and made sore. Certain charges were given to the jury, by which they were' in effect instructed that if the defendant wrongfully refused to give the plaintiff employment, and in violation of its contract declined to furnish him with transportation from Cincinnati to Atlanta, the injuries above mentioned might be considered in arriving at the amount of damages to which he was entitled. The court also read to the jury the first sentence of section 3907 of the Civil Code, which is as follows: “In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors.”
Even if the defendant violated its agreement with the plaintiff, and he therefore became entitled to recover for a breach of
Section 3807 of our Civil Code reads as follows: “ A tort is a legal wrong committed upon the person or property independent of contract. It may be either — 1. A direct invasion of some legal right of the individual. 2. The infraction of some public duty by which special damage accrues to the individual. 3. The violation of some private obligation by which like damage accrues to the individual.” Section 3810, which is a portion of the chapter on torts, declares that: “ Private duties may arise either from statute, or flow from relations created by contract express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action.” In arriving at a correct understanding of the meaning of section 3807, the words “independent of contract” must be understood as applying to each one of the three subdivisions embraced in that section. Accordingly, the third subdivision means the same as if it read, “The violation of some private obligation, independent of contract, by which like damage accrues to the individual”; and section 3810, in so far as it refers to private duties flowing from “relations created by contract, express or implied,” means the same thing.
Every person who makes a contract of any kind is, of course, under a duty of performing it; but it would never do to hold that every breach of a civil contract, though necessarily in a sense involving a breach of the duty thereby imposed, would
Our own reports afford numerous instances where one who has sustained damages may bring an action upon the contract broken, or declare in tort for the defendant’s violation of a duty imposed by law. See Georgia Southern Railroad Co. v. Bigelow, 68 Ga. 219; City & Suburban Railway v. Brauss, 70 Ga. 368; Georgia Railroad Co. v. Eskew, 86 Ga. 641; Caldwell v. Richmond & Danville Railroad Co., 89 Ga. 550; Central Railroad Co. v. Strickland, 90 Ga. 562. These were all actions against railroad companies, in each of which the defendant, in violating the contract rights of the plaintiff, was also guilty of a breach of its public duty as a common carrier. The case of Lea v. Harris, 88 Ga. 236, furnishes an illustration of the vio
We are unwilling to strain section's 3807 and 3810 of our code beyond what we regard as their true intent and meaning, by holding that a breach of an executory contract, into which a railroad company was under no legal duty of entering, can be made the basis of an action ex delicto; nor have we been able to find any decision of this_ court which, fairly construed, would constrain us to go to such an extent. If a contract for passage has been actually made and violated — as, for instance, by expelling a passenger from a train, — clearly the injured party may sue in tort. Or, if a person applied to the proper agent of a railroad company for a ticket, tendered the requisite price, and the picket was refused, this -would be a violation of the carrier’s public duty, which would entitle such person to bring an action ex delicto. It would be easy to multiply illustrations of this kind; but the present case is altogether different. The plaintiff was not, in any sense, a passenger, either of the defendant company or of any railroad company having a line forming a part of a railroad route between the cities of Cincinnati and Atlanta. It does not affirmatively appear that the defendant company’s line constituted a portion of any such route of travel. There was simply an executory agreement between the plaintiff and the defendant, whereby the latter, upon ■condition that the former did certain things, was to furnish him transportation from one city to another. Assuming that the plaintiff performed his part of the agreement, the defendant’s -refusal to comply with its obligations thereunder was like any other breach of an ordinary contract, involving no violation of a public duty or of a private duty resulting in any in
Judgment reversed.