Busch v. Interborough Rapid Transit Co.

• Decision Date: 19 February 1907
• Citation: 80 N.E. 197,187 N.Y. 388
• Parties: BUSCH v. INTERBOROUGH RAPID TRANSIT CO.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 388

80 N.E. 197

BUSCH

v.INTERBOROUGH RAPID TRANSIT CO.

Court of Appeals of New York.

Feb. 19, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Emanuel A. Busch against the Interborough Rapid Transit Company. From a judgment of the Appellate Division (110 App. Div. 705,96 N. Y. Supp. 747), unanimously reversing an order of the Appellate Term (93 N. Y. Supp. 372), and affirming a judgment of the Municipal Court of the City of New York in favor of plaintiff, defendant appeals. Affirmed.

Joseph H. Adams, for appellant.

Charles Goldzier, for respondent.

HISCOCK, J.

This action was brought to recover damages for defendant's failure to properly transport plaintiff over its road in the city of New York. The real, substantial element of damages is an alleged assault upon and maltreatment of plaintiff by one of defendant's employés after the former had passed through the gateway onto the platform of one of defendant's stations for the purpose of taking a train, and the sole question is whether the action is one of contract or of tort. This inquiry is of controlling importance, since the Municipal Court, where the cause originated, had jurisdiction of an action of the former character, and did not have jurisdiction of one of the latter kind. I think that the learned Appellate Division correctly held that the action was one in contract, and that plaintiff's judgment should be affirmed.

Naturally the first and most important step to be taken in determining this question is an examination of the complaint. The allegations of this which are important read as follows: ‘Second. That on the 7th day of January, 1905, this plaintiff became a passenger of the defendant for the purpose of being carried upon one of its cars, * * * and in consideration of the sum of five cents (5c.), duly paid by this plaintiff to the defendant, the defendant promised and agreed safely to carry this plaintiff and to treat him properly and carefully. Third. * * * That the defendant, through its agents and employés, wrongfully, illegally, and in violation of the terms of said contract, assaulted the plaintiff,’ etc. The trial proceeded under this complaint, and evidence was produced which, without recapitulating it, is assumed upon this appeal to have been in accordance with and in support of the allegations of the complaint. In the presence of a unanimous affirmance, we must assume that there was evidence to support the verdict, and, in the absence of some objection, we may presume that such evidence followed the pleadings. Therefore we have the allegations, established by proof, of a promise and agreement to do certain things, of the violation of the ‘terms of said contract,’ and of the manner in which the violation occurred. These allegations, in so far as they affect the point under consideration, are not modified or supplanted by any others; and I fail to see how a complaint could much more directly impress upon an action the character of one in contract than does the pleading before us. It certainly was possible for the defendant to make a contract ‘safely to carry this plaintiff and to treat him properly and carefully,’ and we must accept the allegation that it did so. Having done this, it was possible for it to commit a ‘violation of the terms of said contract’; and this is properly alleged. And, finally, there is no room for doubt or need for authorities that all or some of the wrongful acts of defendant's servant which are alleged as constituting such violation did in fact amount to a breach of the alleged specific contract ‘to safely carry’ plaintiff and to ‘treat him properly and safely.’ Nothing more occurs to the mind in the way of allegations which was necessary to establish the character of the action as one for contract which had been broken to plaintiff's damage.

Probably little or no doubt would have arisen as to the form of the complaint or the nature of the action if there had been alleged and proved some act constituting a familiar breach of contract; but the fact that this action was brought to recover damages largely caused by acts ordinarily treated as torts has cast a suspicion upon its character, which, however natural, is not confirmed by legal analysis. It is no bar or answer to the claim of an action in contract that one in tort might have been, and ordinarily would be, brought for the acts really complained of. The dividing line between breaches of contract and torts is often dim and uncertain. There is no definition of either class of defaults which is universally accurate or acceptable. In a general way, a tort is distinguished from a breach of contract in that the latter arises under an agreement of the parties; whereas, the tort ordinarily is a violation of a duty fixed by law, independent of contract or the will of the parties, although it may sometimes have relation to obligations growing out of or coincident with a contract, and frequently the same facts will sustain either class of action. Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382, 390. And so, while it may be conceded that, independent of any express promise or agreement, the defendant would have been subject to duties and obligations in favor of plaintiff, the violation of which by the acts complained of in this case would have amounted to a tort, that is not at all decisive that this action was not and could not be brought in contract.

Independent of what seems to be the plainlogic of the case,...