O'neal v. Pocahontas Transp. Co

• Citation: 129 S.E. 478
• Court: Supreme Court of West Virginia
• Decision Date: 08 September 1925
• Parties: O'NEAL . v. POCAHONTAS TRANSP. CO. et al.

129 S.E. 478

O'NEAL .

v.POCAHONTAS TRANSP. CO. et al.

Supreme Court of Appeals of West Virginia.

Sept. 8, 1925.

(Syllabus by the Court.)

Case Certified from Circuit Court, McDowell County.

Action by Golda O'Neal against the Pocahontas Transportation Company and another. After overruling demurrers to the declaration, the trial judge certified his ruling for review. Reversed.

Harman & Howard, of Welch, for plaintiff.

Sanders, Crockett, Fox & Sanders, of Welch, for defendants.

LIVELY, P. Having overruled demurrers to the declaration, the trial judge on his own motion certified his ruling for review.

The declaration consists of two counts, the first of which contains the common counts in assumpsit, and the second count charges, in substance, that defendant Pocahontas Transportation Company applied to the state road commission for a certificate of convenience to operate automobiles for carriage of passengers and freight for hire between stated termini, and was given such certificate of convenience and filed as required by law with the commission liability insurance satisfactory to the commission, as provided in subsection class H of section 82, chapter 6, Acts 1923; that by virtue of the certificate issued to it the defendant transportation company became a common carrier of passengers for hire and reward, and that plaintiff for a consideration paid by her became a passenger on one of the busses operated by it, whereby the transportation company and the defendant Ocean Accident & Guarantee Corporation, Limited (the insurer executing the indemnity insurance policy), entered into an implied contract with her for safe carriage of her person and property to her destination, and that defendants did not carry her safely, but through their agents negligently and carelessly operated the bus on which she was riding by reason of which she received personal injuries and injury to her property, and that she was prevented from transacting her necessary affairs and business to the amount of $500; that the damage to her property (clothing) amounted to $100; that she paid out and expended the sum of $500 for medical attendance; and that her entire damages resulting from the negligence of defendants amounted to $5,000, for which she sues. The declaration sets out the details of the accident by which the injuries were received, and charges, in substance, that the operator of the car negligently and carelessly ran it over a steep embankment in attempting to pass another car at a high rate of speed on the narrow part of the road. The indemnity insurance policy between the transportation company and the Ocean Accident & Guarantee Corporation, Limited (hereinafter called the insurance company), is set out in ha?c verba in this second count of the declaration.

Defendants filed joint and separate demurrers. The points of demurrer are: (1) Misjoinder of common counts in assumpsit, with a special count sounding in tort; (2) misjoinder of parties defendant: (a) The declaration joins an action against the transportation company for negligence with a cause of action against the insurance company for breach of contract of carriage; (b) the cause of action purports to be for breach of an implied duty for safe carriage, while the liability policy pleaded is expressly limit-ed to indemnity to the assured for losses arising out of torts, and also to indemnify the assured against losses and damages to its own property in the operation of its cars.

On the first point of demurrer it is insisted by plaintiff's counsel that the action is in assumpsit, and therefore the incorporation of the common counts in assumpsit with a special count for breach of the contract of carriage is not objectionable. If the two counts are based on a cause of action ex contractu, their joinder would not be error in pleading. It is insisted, however, that the second count, while ostensibly one charging a breach of an implied contract of carriage, is in reality founded on the tort of defendant transportation company in negligently and carelessly driving the bus in which plaintiff was a passenger over the embankment, to her physical and property damage, and according to its true intendment and effect is a count based on tort, wherefore the cause of action is ex delicto, and it was error to join it In the declaration with another count on contract; namely, the common counts in assumpsit. It is well settled that in cases of this character plaintiff may sue in assumpsit or sue in tort, as he may elect. The question here presented is whether the second count is purely a count for breach of the contract of carriage. If that be true, the count is demurrable for misjoinder of parties, on the ground that the liability indemnity policy set out in full in the count does not indemnify the assured transportation company against its breaches of contract of carriage. The insurance contract protects the assured against damages which may be recovered against it for injuries to persons or property while being transported by it, and indemnifies the assured against damage to its own property in the operation of its bus line. The gravamen of the special count is the negligence of the transportation company in the operation of the car. The damages claimed in the declaration arise out of that tort. As pointed out in Hall v. Philadelphia Co., 74 W. Va. 172, 81 S. E. 727, the measure of damages for a tortious act resulting in the breach of the contract is quite different from the damages for breach of the contract in assumpsit. The opinion says:

"The distinction between damages in assumpsit and in tort is not always observed."

—and quotes from Sedgwick on Damages the following:

" 'The inherent difference between a breach of an agreement between parties, and that sort of a breach of duty which we call a tort, is as old as the law itself. It is believed, too, that as a general rule the measure of damages in one case is necessarily different from the measure of damages in the other. To put the plaintiff in the same position as if the contract has not been broken is the object in cases of contract; whether the contract is broken by accident or by fraud can make no difference. As long as the action is brought to obtain compensation for the loss of the contract, the circumstances attending the breach cannot affect the result. But if the cause of action is a tort, the plaintiff must obtain full compensation for an act or series of acts, the full effect of which cannot even be understood unless we know every circumstance of aggravation and mitigation. * * * 2 Sedgwick on Damages (9th Ed.) § 602.' "

The opinion further says:

"The sole question [in the action of assumpsit] is, What is the pecuniary value of the contract right taken from plaintiffs?"

The damages claimed in the count under consideration are not for the value of the contract, but are damages peculiarly arising out of the tort. The gravamen of the count is defendant's tort, resulting in the breach of contract. Clearly the count sounds in tort. The courts will look to the substance and object of a pleading for its true intendment and meaning and not to the name by which it may be called. A count sounding in contract cannot be joined with a count sounding in tort. This renders the declaration bad for misjoinder of counts. It is permissible, however, to amend the pleading by elimination of one of the counts. Shafer v. Security Trust Co., 82 W. Va. 618, 97 S. E. 290; Knotts v. McGregor, 47 W. Va. 566, 35 S. E. 899. When so amended the writ may be changed to conform to the amendment. Section 15, chapter 125, Code. The demurrer should have been sustained, on the ground of misjoinder of actions, with the privilege to the plaintiff to amend.

The main point of error and that to which the oral argument and briefs are largely addressed is the alleged misjoinder of parties defendant. Plaintiff's counsel concedes, and it is plainly apparent, that the defendant insurance company is not primarily liable (surely not on the contract of carriage) to plaintiff, unless the statute of 1923 above referred to (subsection class H of section 82, chapter 6, Acts 1923) can be construed to afford plaintiff such remedy; for in the terms, stipulations, and provisions of the indemnity policy, as...