68 Ga. 644 | Ga. | 1882
The plaintiff in error brought his action against the Georgia Railroad and Banking Company for damages. He alleged that plaintiff, in consideration of the sum of thirty dollars, undertook and promised to deliver a certain car-load of hogs, 64 in number, at Union Point, on the Georgia railroad, a'station on said road in Greene county. “But the defendant, unmindful of its obligations, had failed to perform their contract; but so carelessly and negligently
A second count in the declaration alleged that the said defendant undertaking, as aforesaid, to transport said hogs to Union Point, wrongfully, carelessly and negligently crowded 64 of said hogs on the single floor of one car, and failing to exercise proper diligence on their part to provide ample room for their transportation, sixteen of said hogs, of the value of $225.00, perished by reason of the negligent' and careless conduct of the defendant, to the damage of plaintiff, etc.
To this declaration an amendment was made appending the written contract entered into between plaintiff and defendant, and in which, among other conditions,'was the following, in which, for a consideration therein expressed, it was contracted : “The said owner and shipper of said hogs do hereby assume and release the said railroad from all injury, loss, and damage or depreciation which the animals, or either of them, may suffer in consequence of their being weak, or escaping, or injuring themselves or each other, or in consequence of overloading, heat, suffocation, fright, viciousness, or being injured by fire, etc., etc., while in the possession of said company, or all other damages incidental to railroad transportation, which shall not have been caused by the fraud or gross negligence of said railroad company.”
Plaintiff further amended his declaration by alleging, “that the defendant, through its agents, representing they would furnish plaintiff with a suitable car, that is to say one with a double deck, and furnished at the same price, he signed the contract, and plaintiff now complains that the failure to provide said double deck car as promised is a fraud on their part, and their failure to provide suitable means for the transportation of said hogs is gross negli
Defendant below then demurred to the original declaration, as amended by the written contract of transportation appended, as not setting forth any cause of action against defendant upon which plaintiff could recover, which demurrer the court sustained and dismissed said action. To both of which rulings of the court plaintiff excepted and assigns the same as error.
An action is merely the judicial means of enforcing a right. Code, §3251.
A civil action is one founded on private rights arising either from contract or tort. Code, §3253.
All claims arising ex contractubet-ween the same parties may be joined in the same action, and all claims arising ex delictu may, in like manner, be joined. Code, §320r.
It will be thus seen that a civil action may arise from a contract or a tort. The former may be maintained either on the breach of a written contract, a parol contract or an implied contract, in the absence of either a written or parol contract.
And so we regard the cause of action as it is set forth in the two first counts in the plaintiff’s writ. It is an action for damages arising from the breach of the written contract appended to plaintiff’s writ, and is therefore in law an action ex contractu; all claims arising under this contract might have been joined either originally or by amendment, if they arose out of the breach of this contract. But could a cause of action not embraced in this contract, nor arising from it, or by reason of the breach thereof, be joined by way of amendment? We think not.
No amendment adding a new and distinct cause of ac
'What is the cause of action proposed by the last amendment ? It is not alleged to arise from the contract, nor upon any other contract, either written or by parol, but by reason of fraudulent representations made and deceit practiced to induce the signing of the contract first declared on; it is alleged that it existed and arose outside of the written contract. It is not alleged that in the written contract defendant agreed and promised to furnish a two decked car in which to transport these hogs ; but that he represented that this would be done, and this before the contract was signed, and that this representation was the inducement for plaintiff to sign the contract; that by this representation he had practiced a fraud upon plaintiff by which fraud and deceit plaintiff was damaged, irrespective of and outside of the written contract.
The pleader by this amendment was seeking, therefore, to recover on the fraud practiced by defendant on plaintiff and damage resulting therefrom. Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action. It is a tort, which is a legal wrong committed upon the person or property, independent of contract. Code, §2951. And this fraud, thus complained of, is the foundation of the last amendment to plaintiff’s writ. It is not only a new and distinct 'cause of action proposed by way of amendment, but as declared on it is an action founded on a tort and which cannot be joined in an action founded on a contract.
While these rules are general, yet in the case of railroads, under the law there is another reason for maintaining this rule, as it involves the question of jurisdiction. Railroad companies are liable to be sued not only in any county where the cause of action originated, but also on all contracts made or to be performed in the county where the suit is brought. The suit upon the written contract, or upon the cause of action arising therefrom, as the con
But it is insisted with great earnestness by the plaintiff in error, through his counsel, that this stipulation in the contract is void in law, and will not be upheld as being also against public policy. This question, under a contract identical with this, was passed upon by this court in
We think, therefore, there was no error in the court’s sustaining the demurrer and dismissing plaintiff’s writ.
Judgment affirmed.