Ft. Smith & W. R. Co. v. Ford
| Citation | 126 P. 745,1912 OK 585,34 Okla. 575 |
| Decision Date | 12 September 1912 |
| Docket Number | Case Number: 2058 |
| Parties | FT. SMITH & W. R. CO. v. FORD. |
| Court | Supreme Court of Oklahoma |
¶0 1. TORTS--Tort or Contract--Duty of Common Carrier. A petition stating a contract of carriage and charging an injury consequent upon a violation of a duty owing plaintiff, in an action against a common carrier, states a cause of action sounding in tort rather than contract, although it alleges an express contract as an inducement; the gist of the action being defendant's breach of a public duty.
2. SAME--Action by Passenger-- Pleading--Contract of Carriage. When the action against a carrier for damages, brought by a passenger, sounds in tort, the allegation of the contract of carriage is regarded as a mere inducement to the action, to show the right to sue as a passenger.
3. CARRIERS--Breach of Duty--Torts. As a general rule, where a passenger is entitled to damages for a breach of the carrier's duty, the remedy is in tort; the wrong done the passenger and the violation of the public duty being the gravamen of the action.
4. SAME--Action by Passenger. The character of an action as to whether it is ex delicto or ex contractu must be determined by the nature of the grievance, rather than the form of the petition, and, in a suit against a common carrier for a breach of duty in failing to put a passenger off at the proper station, the courts are inclined to consider the action as founded in tort, unless a special contract very clearly appears to be made the gravamen of the complaint.
5. DAMAGES--Injury to Passengers--Exemplary Damages. To authorize a judgment for exemplary damages, in an action sounding in tort, the proof must show some element of fraud, malice, or oppression. The act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must be the result of such gross negligence--such disregard of another's right--as is deemed equivalent to such intent.
6. CARRIERS--Failure to Stop at Station--Damages. In the running of trains, it is the duty of a carrier of passengers to discharge passengers aboard trains at the regularly appointed place or station, and, for a failure or neglect so to do, it is liable to the party aggrieved for all damages sustained, and for costs, and, where the necessary elements exist, for punitive or exemplary damages.
7. SAME--Liability in Tort. Where the point of destination of a passenger on a railroad train is a flag station, to which the carrier sold him a ticket, and his presence on the train is known to the conductor, the carrier is charged by law with the duty of stopping the train at such station and affording a reasonable opportunity to the passenger to get off; and a failure to perform such duty is not only a breach of contract, but a tort for which an action is maintainable.
C. E. & H. P. Warner, for plaintiff in error.
J. Wesley Smith, for defendant in error.
¶1 Defendant in error, plaintiff below, recovered judgment in the county court of Le Flore county against the plaintiff in error, defendant below, for damages occasioned by the negligence of defendant in carrying the plaintiff, who was a passenger on one of its trains, through a station to which he had purchased a ticket on defendant company's line of railroad. The verdict was for $ 75. Nine specifications of error are assigned by the plaintiff in error, but two of which are discussed in the brief. The first is that, the action being one for a breach of contract, there was no proof that plaintiff sustained any damages; the second, that the verdict of the jury was excessive. The petition in part charges that on the 7th day of February, 1910, plaintiff was a passenger on one of defendant's regular passenger trains, having purchased a ticket and paid for transportation from Spiro to Skullyville, and that while on said train the employees of defendant company took up plaintiff's ticket; and further charged that it was the duty of said company to stop its train at the said station of Skullyville, to permit the plaintiff to alight therefrom, but that, disregarding its duty in that respect, defendant company failed and refused to stop its train at said station, and willfully and wrongfully carried plaintiff by and past his said destination. Section 1379, Comp. Laws 1909, provides that, in case of a neglect or refusal of a railroad company to discharge or deliver passengers at the regularly appointed place, the offending company shall pay the party aggrieved all damages which shall be sustained thereby, with costs of action. This is but declaratory of the duty of carriers of passengers that existed at common law. It is clear that, upon a failure to discharge its duty by affording an opportunity for the passenger to alight at his destination, there was such a violation of duty as would entitle plaintiff to recover at least nominal damages. Plaintiff in error admits its liability for nominal damages, but upon the ground of a breach of contract to transport defendant in error to his destination. If the action, therefore, is one predicated upon contract, the only damages recoverable would be such as would afford full compensation for the injury, if any, sustained by plaintiff, and, there being no testimony tending to show that plaintiff sustained any actual damages, the verdict of the jury would therefore be without evidence to support it. It is therefore necessary to consider whether the action is one arising ex contractu or ex delicto. In our system of pleading the formal distinction between actions is abolished, and the petition should state facts constituting the cause of action, plainly and distinctly. In determining the character of the action, we look to the substance of the entire pleading, and not to the mere formal language in which it is expressed. We have regard to the facts constituting the cause of complaint, and afford the plaintiff the most ample redress which the facts will justify, consistent with the rights of the defendant. It is the policy of our system to trammel the rights of the parties as lightly as possible by technicalities of mere form, but so to shape pleadings as to bring before the court or jury the matter in issue between the parties. Hence, when the facts are plainly and distinctly stated, the action will be regarded as either in tort or contract, having regard, first, to the character of the remedy such facts indicate; and, second, to the most complete and ample redress which upon the facts stated the law affords. The character of the action is to be determined by the nature of the grievance rather than the form of the petition, and in cases of the character at hand, courts are inclined to consider it is as founded in tort, unless a special contract very clearly appears to have been made the gravamen and object of the complaint in the petition. The case before us presents, under these views, the inquiry whether the petition seeks to recover for a breach of the contract stated therein, or whether the wrong and injury complained of was that the plaintiff, after acquiring by contract the right to travel on defendant's train to a certain station, and to there be afforded a reasonable opportunity to alight from said train at the station at his point of destination, was wrongfully carried by said station by the negligence of the railroad company, and in violation of its public duty. The contract is stated as an inducement to the action, as the foundation of plaintiff's right to be on the train, to show that plaintiff was lawfully there. It next charges that without the consent of plaintiff the railroad company willfully and wrongfully, and with disregard of its duty to plaintiff, failed and refused to stop its train at Skullyville station, and carried plaintiff beyond his destination to a point about one mile distant therefrom. There is testimony to show that plaintiff requested the employees in charge of said train to back it to the station, but that they refused so to do. Here is not only a breach of contract and a violation of public duty by the plaintiff in error as a common carrier, but a willful, deliberate, conscious...
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