Mobile Life Insurance v. Randall

74 Ala. 170 | Ala. | 1883

STONE J.

— The original complaint in this case is in trover,, and contains two counts. The suit was commenced in Aprily 1879. At the Fall term, 1882, the complaint, with leave of the court, was amended by adding a third count. The defendant demurred to the complaint, as amended, assigning as one of the grounds that there was a misjoinder of count, in this, that the first two counts are in trover, and the third in assumpsit. If this be true, then the demurrer ought to have been sustained; for trover, which is ex delicto, can not be joined in the same action with assumpsit, which is ex contn-actu. Furthermore, on the hypothesis that the third count is in assumpsit, its allowance would have been the introduction of a new cause of action, a departure from the wrong complained of in the first two counts, and not allowable, even under our liberal system of amendments. — Crimm v. Crawford, 29 Ala. 623; Johnson v. Martin, 54 Ala. 271; Simpson v. M. & C. R. R. Co., 66 Ala. 85; Steed v. McIntyre, 68 Ala. 407. For the appellee it is contended, that the third count is in case. Counts in trover and in case may be joined in the same action (1 Brick. Dig. 24, § 54), while assumpsit and trover cannot be so joined. — Ib. 24, § 53.

The history of the action on the case, or special action on the case, as it was originally called, is well known to the profession. It is not one of the original common-law writs. In the progress of judicial contestation, it was discovered that there was a mass of tortious wrongs, unattended by direct and immediate force, or where the force, though direct, was not expended on an existing right of present enjoyment, for which the then known forms of action furnished no redress. The action on the case was instituted to meet this want. It may then be styled a suppletory, personal action, ex delicto. It was designed to be residuary in its scojje, but is always classed among the actions in tort.

For mere breaches of ordinary contracts, without more, this action will never lie; for, in such breach of promise, there is no element of tort, in the legal sense of that term, — “ a wrong independent of contract.” — Bouvier’s Die. Nevertheless, wrongs which will maintain an action on the case are frequently committed in the non-observance of duties, which are hut the implication of contract-obligation. Contracts have a leading, primary obligation — to do a specified act; to perform *a specified service; or to pay or deliver a specified thing of value. A mere failure to perform such a contract-obligation is not a tort, and it furnishes no foundation for an action on the case. But contracts, however briefly expressed, are to be interpreted in the light of great legal principles, which enter into and permeate all human transactions. Hence, the duty of requisite skill, fidelity, diligence, and a proper regard for the rights of others, is implied in every obligation to sérve another. The degree of these qualifications is graduated by the nature of the service undertaken; but they inhere in, and form a part of all dealings between man and man. The observance of these duties is necessary to the peace, good order and success, of all municipal regulation. Now, for a breach of the contract-obligation, the remedy is an action ex cont/radm. If the implications, or collateral duties of the service, be disregarded, and injury ensue, .this is a tort, for which, an action on the case will lie.

Mr. Justice Parsons, in Wilkinson v. Mosely, 18 Ala. 288, said: “Perhaps the best criterion is this: if the cause of action, as stated in the declaration, arises from a breach of promise, the action is ex conlractu ; 'but, if the cause of action arises from a breach of duty growing out of the contract, it is in form ex delicto, and case.” In 2 W.ait’s Ac. and Def. 100, the doctrine is thus stated : “ When there is a contract, either express or implied, from which a common-law duty results, an action on the case lies for the breach of that duty ; in which case, the contract is laid as mere inducement, and the tort arising from the breach of duty as the gravamen of the action. Thus, if a lawyer or physician is engaged by special contract to render professional service, and, in the performance of such service, he is guilty of gross ignorance or negligence, an action on the case will lie against him, notwithstanding such special contract.” See, also, Pomery on Rem. §§ 567, 573.

Justice Parsons, in Wilkinson v. Mosely, supra, illustrates his view of the question as follows: “ If the declaration allege the hiring of a horse to ride to a certain place, and that the defendant rode him so immoderately that he died, this would be case; for the contract of hiring imposed upon him the duty to ride in reason, or not unreasonably fast. But, if the declaration allege the hiring, and that he promised to ride with reasonable speed, but, not regarding his promisé, he rode the horse immoderately, whereby he died, the action may be considei’ed assumpsit.” We do not doubt that assumpsit would lie in the case last supposed ; but case would lie also. It was a case, not only of a breach of contract, but a violation of a duty enjoined by law, and therefore a tort. — Blick v. Briggs, 6 Ala. 687; Myers v. Gilbert, 18 Ala. 467. In such case, the pleader has the option to sue in assumpsit, for the breach of the contract; or in case, for the violation of the duty imposed by law. 'Wherever there is carelessness, recklessness, want of reasonable skill, or the violation or disregard of a duty which the law implies from the conditions or attendant circumstances, and individual injury results therefrom, an action on the case lies in favor of the party injured ; and if the transaction had its origin in a contract, which places the parties in such relation as that, in performing or attempting to perform the service promised, the tort or wrong is committed, then the breach of the contract is not the gravamen of the suit. There may be no technical breach of the letter of the contract. The contract, in such case, is mere inducement, and should be so stated in pleading. It induces, causes, creates the conditions or state of things, which furnishes the occasion of the tort. The wrongful act, outside of. the letter of the contract, is the gravamen of the complaint; and in all such cases, the remedy is an action in the case. Take, for illustration, the contract of a carpenter to repair a house, partly decayed, or otherwise defective. The implications of his contract are, that he will bring to the service reasonable skill, good faith, and diligence. If he fail to do the •work, or leave it incomplete, the remedy, and only remedy against him, is ex eontraetiu. Suppose, in the attempted performance, he, by his want of skill or care, destroys, damages, or needlessly wastes the materials furnished by the hirer; or, suppose that in making the needed repairs, he did it so unskillfully or carelessly as to damage other portions of the house; this is toft, for which the contract only furnished the occasion. The contract is mere inducement, and the action is on the case. We may add, that there are many cases in which the pleader has the election of suing in assumpsit or case.

In the third count, or amended complaint, we find this averment : “ Plaintiff avers that the defendant, disregarding the rights of plaintiff under said agreement, and in violation of said agreement, did, to-wit, on the 1st day of September, 1878, wrongfully discharge plaintiff from its said service.'*’ This averment, it is contended, if all others fail, fixes the character of this count as in case. The vice of this argument lies in this : The complaint shows that plaintiff was the agent of the defendant corporation, and it entirely fails to show that his appointment was for any given time, except from year to year, or that, at the time of his alleged discharge, he was acting as agent hy virtue of any appointment, or renewal of appointment. The count avers that plaintiff became defendant’s agent on the-day of -, and “ that the contract was renewed from time to time, until, to-wit, on the 3d day of April, 1876, the said contract or agreement was so modified as to give or entitle plaintiff ” to an increased rate of commissions. Not a word said about the renewal of his appointment, or the duration of any appointment he had received. So, it does not appear, either by averment, or even by inference from any averred fact, that at the time of the alleged unauthorized discharge, he was the appointed agent of defendant, or in fact was, in any sense, the defendant’s agent. The renewal contract was in April, 1876, while the alleged discharge was in September, 1878, — nearly two and a half years afterwards. A fact so important to plaintiff’s rights can not be taken by inference. He can not have been wrongfully discharged, unless he show's he was in the service by virtue of appointment, or renewal of appointment; or* at all events, that he was in the service, and in the performance of his duties as such agent.

The third count, then, is narrowed down to this : It avers that, under the terms of the modified contract of April, 1876, plaintiff was entitled to a certain per-cent, on annual renewals of a given number of policies, for and during the term of his natural life, which it avers would amount to a named, sum. The breach assigned is, that defendant denies plaintiff all right to said renewal premiums, or any interest therein, and still refuses to recognize plaintiff’s interest therein. There is not an element of legal tort in the averments.of this count. If a denial of liability to pay money, claimed by another, be a tort that will maintain an action on the case, then that action has a very wide scope; much wider than the appellee himself would contend for.

We have-carefully examined the facts and history of this case, and, basing-our judgment alone on the two contracts of February, 1874, and April, 1876, and the testimony of plaintiff himself, we announce the following conclusions: 1. There is no conversion that will maintain the action of trover. 2. If the defendant corporation discharged plaintiff from its service, the latter’s prior violation of the contract of February, 1874, justified it-in so doing. The facts will not support an action on the case.

It results from these principles, that the present complaint can not be so amended as to authorize a recovery. If the plaintiff has any cause of action, it is for his interest in the renewal premiums as they are realized.

Reversed, but the cause need not be remanded.