Bowers v. Richmond & D. R. Co

• Decision Date: 22 December 1890
• Citation: 12 S.E. 452,107 N.C. 721
• Court: North Carolina Supreme Court
• Parties: Bowers et al. v. Richmond & D. R. Co.

107 N.C. 721

12 S.E. 452

Bowers et al.

v.Richmond & D. R. Co.

Supreme Court of North Carolina.

Dec. 22, 1890.

Jurisdiction of Superior Court.

Where a complaint alleges that defendant, a common carrier, contracted with plaintiffs to transport certain boxes of mica, and that it "so negligently and carelessly conducted in regard to the same that the mica was greatly damaged, three boxes being broken open and scattered, to the great damage of the plaintiffs, " etc., the action is for a tort, and where the damages alleged exceed $50 the superior court in North Carolina has jurisdiction.

Appeal from superior court, Jackson county; Connor, Judge.

It is alleged, in substance, in the com-plaint that five boxes of mica were shipped to the plaintiffs from the city of Boston, and that the defendant and others, common carriers, contracted with the plaintiffs to transport the same for certain compensation, etc., and it is further alleged: " (4) That the defendant, in compliance with the said contract for hire, entered into in the said city of Boston, undertook to carry the said five boxes of mica safely from the town of Salisbury, N. C, to Sylva, in North Carolina, and collected the freight for transportation due for the entire route at said point of delivery; (5) that the defendant did not safely carry and deliver said five boxes of mica pursuant to the agreement aforesaid, but it so negligently and carelessly conducted in regard to the same that the mica was greatly damaged, three boxes being broken open and scattered, to the great damage of the plaintiffs of one hundred and forty dollars. Wherefore the plaintiffs pray judgment for the sum of three hundred dollars, and the costs of this action." The defendant in its answer denied all the material allegations of the complaint. Thereupon the court gave judgment as follows: "It appearing from the pleadings in this cause that the court has no jurisdiction of the action, it is ordered and adjudged, on motion of defendant's counsel, that this action be dismissed at the cost of the plaintiffs. " The plaintiffs excepted and appealed.

Geo. A. Jones, for appellants.

D.Schenck and Charles Price, for appellee.

Merrimon, C, J., (after stating the facts as above.) It is settled that, under the present method of civil procedure, when the breach of a contract involves a tort, the complaining party may waive the contract, and sue for and recover damages for the tortious injury. In such case, if the damages alleged in good faith are $50, or less, the court of a justice of the peace will have jurisdiction; if for that or a greater sum, the superior court will have jurisdiction. Bullinger v. Marshall, 70 N. C. 520; Ashe v. Gray, 88 N.C. 190; Norville v. Dew, 94 N. C. 43; Harvey v. Hambright, 98 N. C. 446, 4 S. E. Rep. 187; Edwards v. Cowper, 99 N. C. 421, 6 S. E. Rep. 792; Long v. Fields, 104 N. C. 221, 10 S. E. Rep. 253. In this case the plaintiffs might have sued for a simple breach of thecontract, andif they had done so the superior court would not have original jurisdiction, because the...