Cox v. Richmond & D. R. Co.

• Decision Date: 19 October 1891
• Citation: 13 S.E. 827,87 Ga. 747
• Parties: Cox v. Richmond & D. R. Co. Moseley v. Same. Perkins v. Same.
• Court: Georgia Supreme Court

13 S.E. 827

87 Ga. 747

Cox v. Richmond & D. R. Co.

Moseley v. Same.

Perkins v. Same.

Supreme Court of Georgia

October 19, 1891

Syllabus by the Court.

1. A declaration sounding in tort, against a railroad company for violation of its duty as a common carrier, is not amendable by converting it, in whole or in part, into an action upon contract to carry.

2. Where the declaration sets forth a cause of action, and lays damages in general terms, it is not vitiated by a clause which sets up that "the entire injury is to her peace happiness, and feelings," although this theory of the injury be incorrect. The action is maintainable for the real injury embraced in the facts set out in the declaration.

Error from city court of Atlanta; Howard Van Epps, Judge.

Separate actions by A. J. Cox, L. S. Moseley, and C. I. Perkins against the Richmond & Danville Railroad Company for wrongful ejection from a train. Judgment for defendant in each case. Plaintiffs bring error. Reversed.

Simmons J.

These cases were argued together. The petitions contained the same allegations, and were dismissed by the court for the same reasons, and the decision in one case will control the others. They were actions for damages for a tort committed upon the plaintiffs by the servants of the railroad company in causing them to leave the train at the wrong station.

1. The allegations in the petitions were sufficient to authorize a recovery by the plaintiffs for the actual damages sustained and for the pain and suffering endured in being left in the woods, and in traveling to their homes on foot in the night-time. The fact that they alleged "the entire injury" was to their "peace, happiness, and feelings" did not destroy the force and effect of their former allegation in regard to their general damages. A court must construe a declaration according to the facts set out therein, and not according to the conclusions of the pleader. If the allegations in the declaration set out facts which make it an action on the case, and the pleader erroneously styles it an action of assumpsit, his calling it assumpsit does not make it so if the facts pleaded show it is case. We think, therefore, the court erred in dismissing these cases because the pleader alleged that the entire injury to the plaintiffs was to their peace, happiness, and feelings. If the pleader had stated in the declarations that, upon the facts set out, no damages were...