7 Ga. App. 542 | Ga. Ct. App. | 1910
Wright delivered to the Southern Railway Company (a non-resident corporation) at one of its stations in Crawford county, Georgia, a shipment of cotton to be transported to
1. There is no need to elaborate the proposition that where a railroad company undertakes the transportation of goods and fails in the duty, by not delivering them in good order, or by not delivering them with reasonable promptitude, and in all similar cases, the party injured has the option of suing ex contractu for a breach of the contract of carriage, or of suing ex delicto for a breach of the public duty imposed by law upon the carrier, by virtue of its having made the contract, and by virtue of the nature of its calling.
2. Generally the form of the action adopted by the plaintiff in such cases determines the venue. By the provisions of the Civil Code of 1895, §2334, if the suit is upon the contract, it must be brought in the county in which the contract is made or in which it is to be performed; and as to shipment of goods, the performance referred to is the delivery at destination. Friedman v. Seaboard Air-Line Ry., 124 Ga. 472 (52 S. E. 763). If the action sounds ex delicto the suit must be instituted in the county in which the cause of action originated. Where does the cause of action ex delicto originate in case of a breach of the public duty imposed upon a common carrier to transport goods and to deliver them at destination without unreasonable delay? In Lytle v. Southern Ry. Co., 3 Ga. App. 219 (59 S. E. 595), we held that the breach of public duty in such cases occurs, in legal contemplation, in the county in which the safe, prompt delivery of the goods should have taken place, — that is, at the place of destination of the shipment. This seems to be the correct view. The physical detention of the goods at any particular point along the line is not, accurately speaking,-the cause of action sued on, though such a physical detention may be the means through which the legal wrong (failure to deliver promptly at destination) arose. That the physical detention is not the cause of action may be shown thus: Say that it should be established to the satisfaction of the jury that a reasonable time
3. Section 2334 of the Civil Code, however, refers only to causes of action originating in this State, so far as non-resident corporations are concerned. Whether it has any applicability at all to non-resident corporations is another point raised by counsel for the plaintiff in error, but it is not necessary to decide that in this case. There is no doubt upon the proposition that in a cause of action against a non-resident railroad company, originating beyond the limits of this State, the venue may be located in this State in
We have no hesitancy in construing the petition -in this case as presenting an action ex delicto. The allegations are such as would be naturally expected in an action ex delicto, the contract being alleged merely by way of inducement. If there were any doubt as to this proposition, since the plaintiff was not required by special demurrer to relieve the ambiguity, we would have construed it to be an action ex delicto. If it be doubtful whether an action in this character of “eases is proceeding upon tort or upon breach of contract, the court should, in the absence of a special demurrer pointing out the ambiguity and requiring the plaintiff to relieve it, construe the petition so as to uphold the jurisdiction and so as to uphold the action, rather than to defeat them. This rule and the rule which requires that the allegations of the petition be construed against the pleader rest upon the same basal consideration, — the presumption that every pleader intends to state his case most advantageously to himself, so far as the facts within his possession will enable him to do so. It will be no more presumed that the petitioner intended to allege a cause of action which could avail him nothing, because his suit was instituted in the wrong jurisdiction, than it will be presumed that the plaintiff had a good cause of action which the allegations of his petition, by reason of omission of facts, fail to substantiate. It is perfectly reasonable and in accordance with common sense to assume, for all juridic purposes, that the plaintiff is trying to set out his case in the strongest possible light warranted by the facts in his possession. If the court would not have jurisdiction of an action ex contractu, and the plaintiff’s petition is ambiguous as regards the question as to whether he is proceeding ex contractu or ex delicto, it would be. violative of the natural presumption to be indulged, as to the plaintiff’s purpose in bringing the suit, to assume that he is proceeding on his contract, rather than on the tort.
Counsel for the defendant makes the suggestion that there is a. conflict between the ease of Lytle v. Sou. Ry. Co., supra, .and the case of Hazlehurst v. Seaboard Air-Line Ry., 118 Ga. 858 (45 S. E. 703). In the Hazlehurst case the suit proceeded ex contractu.