85 Ark. 257 | Ark. | 1908
(after stating the facts.) Appellant contends that this is an action for tort, and, therefore not within the jurisdiction of a justice of the peace. In the case of St. Louis, I. M. & S. Ry. Co. v. Heath, 41 Ark. 478, the court said: “In suing a common carrier for the breach of a contract for the carriage and delivery .of goods, the action may be, in form, either ex contractu or ex delicto. The plaintiff may bring assumpsit, counting upon the nonperformance of the agreement which the defendant made with him; or he may bring case and count upon the violation of the public duty which the defendant owes. But the same law is applicable to both classes of action, and the measure of damages is the same in both.”
The allegations in the present case will support an action in 'either form ex contractu or ex delicto. St. Louis, I. M. & S. Ry. Co. v. Sweet, 63 Ark. 563. There was a judgment by default against the company in the justice’s court. In the circuit court the action was evidently tried upon the theory that it was for a breach of contract, for the defendant entered an oral plea denying the allegations of the complaint and stating that it had two rates. It further stated that plaintiffs accepted the cheaper rate, and that under it the stock shipped would not have to reach its destination in a certain time. The testimony was directed mainly to the point that there was a written contract, all the testimony showed that a contract of shipment was executed, but the contract was. not introduced in evidence. The defendant, now appellant, asked the court to find the facts to be that plaintiffs brought their action on a verbal contract, and that the proof on both sides showed the shipment of stock was made upon a written contract. If the action was founded upon tort, it was not necessary to prove a contract, either verbal or written. All that was necessary upon the part of the plaintiff was to prove that the stock was received for shipment, and that there was a violation of the duty owed the shipper by the carrier. If the contract contained terms and conditions that were favorable to the carrier, these were not matters to be set up in the complaint, but were available to the carrier as a defense, and are required to be so pleaded. “The plaintiff was not required to allege or prove that the stock was shipped under a special contract to make the company liable; for, by virtue of the common law, it was liable as a carrier for all damages to property in its possession not caused by the act of God or the public enemy. If the company held a contract limiting its liability, and relied as a defense upon the failure of the plaintiff to comply with the contract, it should not only have set up the contract, but should have stated the particulars in which plaintiff had thus failed.” Kansas City, P. & G. Rd. Co. v. Pace, 69 Ark. 256.
Affirmed.