The opinion of the court was delivered by
Only one cause of action is averred, and that is fully and sufficiently set forth in tort. It is not so set forth as to make a good declaration in contract. If the deed imposes upon the defendants an obligation to exercise extraordinary care, the allegations in respect to the deed are material and proper. If the deed has no operation upon the rule of care, then the allegations in respect to it are surplusage. It is not unusual to insert in a declaration averments which affect only the rule of care and negligence which should govern the case. Thus, declarations alleging the defendants to be common carriers and at the same time averring gross negligence on their part in the transportation of the goods, are usual and well approved. In such cases a failure to prove the allegation of negligence is no variance, and the plaintiff may recover without such proof, provided the evidence shows a case under the general rule respecting the liability of carriers. On the other hand, if the plaintiff does prove the allegation of negligence, he may recover, even chough there are circumstances limiting the responsibility of the carrier below the common law rule. So, in this case, if the deed affects the rule of care, the declaration is aptly framed to give the plaintiff the benefit of it. So far as the sufficiency of the declaration is concerned, it is unnecessary to decide whether the deed has any effect upon the rule of care or not, because if it does, the averments in respect to it are material, and if it does not they are immaterial, and to be rejected as surplusage, and in either view the declaration would be sufficient.
Judgment reversed and cause remanded.