Head v. Georgia Pac. Ry. Co.

• Decision Date: 20 December 1887
• Citation: 7 S.E. 217,79 Ga. 358
• Parties: HEAD v. GEORGIA PAC. RY. Co.
• Court: Georgia Supreme Court

7 S.E. 217

79 Ga. 358

HEAD v. GEORGIA PAC. RY. Co.

Supreme Court of Georgia

December 20, 1887

Syllabus by the Court.

An action on the case by a passenger against a railway company for wrongfully expelling him from the train, with force and violence, though the declaration allege a contract for carriage, is not for breach of the contract, but for a tort by breach of duty, and punitive as well as actual damages are recoverable if the circumstances of the particular case warrant such recovery.

If the purchaser of a round-trip ticket, after paying for and receiving it, perform all the stipulations of the contract on his part, or offer to do so in proper time and manner, the company is bound to recognize and honor the ticket when and wherever duly presented, notwithstanding any mistake or omission by its agents in signing or stamping the same. ^[1]

Error from superior court, Haralson county; MADDOX, Judge.

Head & Thomas, M. J. Head, and Blance & Noyes, for plaintiff in error.

J. M. McBride, for defendant in error.

BLECKLEY C.J.

The amendment proper did not substantially strengthen the case set out in the original declaration, and while it was not an improper amendment, the court perhaps ought not to be reversed for disallowing it. But we think it was error to cut off the plaintiff from the recovery of such damages of every kind as he sustained. His declaration was not in contract, but in tort. It was an action upon the case for a wrong, not an action of assumpsit for the breach of a contract. It went upon the theory that the contract established the relation of carrier and passenger, a relation attended with a duty from the former to the latter, and that the duty was wrongfully violated. Where the plaintiff has a contract with the defendant which generates a relation attended with a public duty, he has his option to bring assumpsit for the breach of the contract, or case for the breach of duty. Here the plaintiff brought a proper action, the contract being set out merely as inducement, with a view to raise the relation, the stress of the action being put upon his expulsion from the train, which, if wrongful, was not only a breach of the contract, but a violation of a public duty by a common carrier. The court erred in sustaining the demurrer, and ordering the action to proceed for the recovery of actual damages only; actual damages, in the sense in which the phrase has now come to be used frequently in Georgia, --a sense supposed to exclude damages for wounded feelings though sections 3066 and 3067 of the Code, properly construed, do not require so restricted an interpretation. Wounding a man's feelings is as much actual damage as breaking his limbs. The difference is that one is internal and the other external; one mental, the other physical. In either case the damage is not measurable with exactness. There can be a closer approximation in estimating the damage to a limb than to the feelings; but at last the amount is indefinite. The jury would have a much wider discretion in dealing with feelings than with an external injury. At common law, compensatory damages include, upon principle, and I think upon authority, salve for wounded feelings; and our Code has no purpose to deny such damages where the common law allowed them. And suppose we call the damages punitive, they are recoverable in such a tort as this if the circumstances were aggravated either in the act or in the intention. Railroad Co. v. Olds, 77 Ga. 674. Putting a man off a train wrongfully is a high-handed measure. In the court below, by sustaining the demurrer, it was meant to exclude recovery for everything except special damages; damages that could be accurately proved and estimated. And the way the jury measured damages so as to get seven dollars, under the evidence, was, they allowed two dollars a day for the lost time, making four dollars, and three dollars for railroad fare, which the plaintiff paid to get back to Tallapoosa; so the jury found only special damage, the damage actually proved in a special case. They found no general damages at all.

Looking into the evidence, we find that this passenger purchased a ticket at Tallapoosa, which was to this effect: "Special Contract. Good for one first-class passage to New Orleans and return, when officially stamped and dated on back hereof, and presented with coupons attached. In consideration of reduced rate the passenger agrees: (1) Company not responsible beyond its own line. Only agent for other lines. (2) Ticket not transferable. (3) Any alteration of the ticket renders it void. (4) Ticket not good for outward passage, except within ten days from date of sale, as stamped on back and written below. (5) Not good for return passage unless holder identifies himself as original purchaser, to satisfaction of authorized agent of Queen & Crescent Route at New Orleans within ten days from date of sale; and when officially signed and dated in ink, and duly stamped by said agent, then good only within ten days from such date, [which date, perhaps, means the date of the stamping, but at all events, in this case, the date of return was within ten days of the date of the issuance.] (6) Limited liability for baggage. (7) Coupons not receivable if detached. (8) The passenger's signature to be manuscript, and in ink. (9) Ticket void unless all the conditions complied with. (10) No line to be answerable for damages for any statements in accordance with the contract made by any employe of said line. [I conjecture there was an omission of the word 'not.' 'Any statement not in accordance with the contract,' etc. Some question might arise as to inconsistent statement; but where consistent, it looks as if it would be idle to protect the company against it.] (11) That no agent or employe has power to alter or modify any of the conditions. (12) The passenger to sign his name, and otherwise identify himself, whenever...