46 F. 734 | U.S. Circuit Court for the District of Washington | 1891
(orally.j I have no doubt whatever that the defendant is entitled to have this motion granted. The orginal complaint filed in the case contained two counts, — the first pleading a cause of action ex contractu, and claiming damages for breach of contract for a passage by a line of steam-boats owned and operated by the defendant from Tacoma to Whatcom, in this state, evidenced by a ticket for such passage purchased and paid for by plaintiff; and, in the second count, pleading a cause of action ex delicto, and claiming damages for a tort pure and simple; both causes of action, however, depending upon the same facts, and being exactly the same transaction, stated in two,,different ways. Upon a motion to make the complaint definite and certain, so as to ascertain what the plaintiff claimed and what he relied on, for the purpose of simplifying the framing of issues, and to enable the parties and the court to Know beforehand what rules of law would be applicable in the trial and decision of the case, I held that it was not permissible, under the system of practice here, to plead in that way, to have a complaint containing repetitions, and aiming in different directions. I stated, however, that the plaintiff had a right, in my opinion, to elect whether to proceed in this case upon the contract, relying upon the contract by itself, and claim only such damages as would be recoverable for a breach of the contract; or he might, in the second place, choose to say nothing about the contract, and recover damages for the tort, treating that as the gravamen of his case; or he might, in the third place, in one pleading, and setting it out as one cause of action, plead his contract, plead the breach of it, and, for the purpose of enhancing damages, plead the special facts connected with the breach of the contract, as the ground for the recovery of special damages. An amended complaint was filed, by which it appears that the plaintiff chose the third method of stating his case, and the case'now, upon the amended complaint, may be termed an action to recover damages for the tortious breach of a contract. The contract, therefore, is the foundation of the case, and upon that theory the trial has proceeded. All the testimony offered has been either admitted or rejected on legal grounds. The plaintiff has rested, and, as the case is now submitted to the court, there is no contract. The foundation of the case is gone. The Code of this state, which governs the practice in cases of this kind, recognizes a distinction between causes of action ex delicto and causes of action ex contractu, and necessarily there is a difference. The rules of law to be applied in the determination of the case are entirely distinct, and therefore, notwithstanding the Code has abolished the common-law forms of action, and the refinements growing out of the observance strictly of forms, there is a difference in the law, a difference in the rights of the parties, in cases founded on contracts from those which
I will say further, however, that the assumption that, with proper pleadings, this plaintiff would be entitled to recover any ’damages for a tort on account of the misconduct charged against the defendant company in ejecting him from the- steam-boat Hassalo at an improper place, considering the time of night and the state of weather, is in my opinion unwarranted. There being no statute in this state forbidding the ejection of a person from a vessel or a railroad at any place other than a regular landing place or station, I cannot assent to the doctrine that a common carrier is guilty of such a wrong as entitles the injured party to recover damages for the mere fact of ejecting a passenger,'or one who is seeking to travel by means of a steam-boat or railroad, at a place other than a regular landing place or station. Certainty the law would not sanction the use of unnecessary force, even in dealing with an intruder or a trespasser;- and, even if. the circumstances of the intrusion or the trespass involved an attempt-at-crime, it would not sanction any wantonness in dealing with the offender. The master of a ship at sea has no right to take a stowaway found on his vessel, and heave him overboard in, mid-ocean. But the principle which governs such cases is exactly the principle governing all cases affecting the rights of persons and their property. The owner of a house, which he uses as his dwelling,' and inhabits with his family, has a right to the quiet, exclusive, and un- • disturbed possession thereof. He can exclude an intruder, but he has ■ no right to kill him unless it is'necessary to do so. The rule of necessity is the rule of law, limiting the right to use force. All that the law forbids.is that there shall be no wantonness or malicious conduct on the part of common carriers, or unnecessary injury done, in removing persons-who have no right to travel by their conveyances. I think, .too, that even in cases where a person claiming a right to travel founded upon a contract, where he- is in the right, is required to act with com- ‘ mon prudence, and- to submit to the exaction, even though wrongful, of. the officers in charge of steam-boats and trains, when they are able to ■ do so, and rely,upon an appeal to -the superior officers of those who thus: treat them wrongfully for redress of their wrongs,-and, if they fail to get it by such effort, thep to -go, to the courts of the country .for redress-of
