Louisville & N.R. Co. v. Spinks

• Decision Date: 08 June 1898
• Parties: LOUISVILLE & N. R. CO. v. SPINKS.
• Court: Georgia Supreme Court

30 S.E. 968

104 Ga. 692

LOUISVILLE & N. R. CO. v. SPINKS.

Supreme Court of Georgia

June 8, 1898

Syllabus by the Court.

1. A breach by a railroad company of an executory contract, into which it was under no legal duty of entering, to furnish the other contracting party with transportation from one point to another, is not a tort, and does not give rise to an action ex delicto.

2. The damages recoverable for the violation of such a contract are to be arrived at by taking into account the value of the injured person's lost time, the cost of transportation between the two places, and any other loss or expense legitimately flowing from the failure of the company to comply with its undertaking.

3. Physical discomfort, pain, weariness, and injuries to limb or foot occasioned by walking over the distance between the places above indicated are not proper elements of damages in such a case.

4. On the trial of an action for the breach of such a contract, it was erroneous to give in charge to the jury the rules of law relating to actions ex delicto, and especially to read to them the first sentence of section 3907 of the Civil Code concerning the measure of damages in certain cases of tort.

Error from city court of Atlanta; J. D. Berry, Judge.

Action by H. D. Spinks, Jr., against the Louisville & Nashville Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Van Epps & Leftwich, for plaintiff in error.

J. T Pendleton, for defendant in error.

LUMPKIN P.J.

The plaintiff's petition alleged: The defendant made a contract with petitioner to work for it in its yards in the city of Cincinnati, Ohio. "Under the terms of said contract, defendant was to furnish petitioner transportation to the city of Cincinnati, and pay all of his expenses going to said city and while remaining in said city, until [the defendant] gave him work; and, if he was not willing to work after getting to Cincinnati, defendant was to furnish him transportation back to the city of Atlanta, Ga., and pay him for all the time in going and returning." In pursuance of this contract, he was conveyed to Cincinnati at the defendant's expense, and lodged in an hotel, but, on account of temporary illness, was denied employment, and forced to leave the hotel. He then demanded of the defendant a ticket which would bring him back to Atlanta, and the same was refused. Being without money, he was forced to walk back to his home, in Atlanta, a distance of several hundred miles, and in so doing suffered much from pain, weariness, and blistered feet.

On the trial the plaintiff introduced evidence tending to support the allegations of his petition, and obtained a verdict for $370. The case was tried as an action ex delicto. The court permitted the plaintiff to prove as elements of damage the pain and weariness he suffered during his journey on foot between Cincinnati and Atlanta, and, in this connection, the fact that his feet, because of this walk, were blistered and made sore. Certain charges were given to the jury by which they were, in effect, instructed that, if the defendant wrongfully refused to give the plaintiff employment, and in violation of its contract declined to furnish him with transportation from Cincinnati to Atlanta, the injuries above mentioned might be considered in arriving at the amount of damages to which he was entitled. The court also read to the jury the first sentence of section 3907 of the Civil Code, which is as follows: "In some torts, the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases, no measure of damages can be prescribed, except the enlightened conscience of impartial jurors."

Even if the defendant violated its agreement with the plaintiff, and he therefore became entitled to recover for a breach of the contract, the verdict now under review cannot stand, because the case was tried upon a totally erroneous theory. It was in our opinion, a plain action ex contract, and the law relating to actions ex delicto had no application to it whatever. It is exceedingly difficult, especially in view of the numerous decisions of courts holding that divers wrongs more or less connected with breaches of contracts are torts, to give an accurate and satisfactory definition of the word "tort." After pointing out many of the difficulties in the way of so doing, in the course of which it is said that "a tort is an act or omission, giving rise, in virtue of the common-law jurisdiction of the court, to a civil remedy which is not an action of contract," Pollock lays down the following somewhat elaborate definition of the meaning of this term: "'Tort' is an act or omission (not being merely the breach of a duty arising out of a personal relation or undertaken by contract) which is related to harm suffered by a determinate person in one of the following ways: (a) It may be an act which, without lawful jurisdiction or excuse, is intended by the agent to cause harm, and does cause the harm complained of. (b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting. (c) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should, with due diligence, have foreseen and prevented. (d) It may, in special cases, consist merely in not avoiding or preventing harm, which the party was bound absolutely, or within limits, to avoid or prevent." Webb. Pol. Torts, 4, 20. Mr. Bishop, in his work on Noncontract Law (section 4), says: "The word 'tort' means nearly the same thing as the expression 'civil wrong.' It denotes an injury inflicted otherwise than by a mere breach of contract; or, to be more nicely accurate, a tort is one's disturbance of another in rights which the law has created either in the absence of contract, or in consequence of a relation which a contract had established between the parties." This definition is adopted in 26 Am. & Eng. Enc. Law, 72: "The word 'torts' is used to describe that branch of the law which treats of the redress of injuries which are neither crimes nor arise from the breach of contracts. All acts or omissions of which the law takes cognizance may, in general, be classed under the three heads of 'contracts,' 'torts,' and 'crimes.' 'Contracts' include agreements and the injuries resulting from their breach, 'torts' include injuries to individuals, and 'crimes' injuries to the public or state." 2 Bouv. Law Dict. 736, 737, citing 1 Hil. Torts, 1. In a footnote on page 6, 1 Jag. Torts,...