Sutton v. Southern Ry. Co

• Decision Date: 10 July 1898
• Citation: 101 Ga. 776,29 S.E. 53
• Parties: SUTTON . v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

29 S.E. 53

101 Ga. 776

SUTTON .

v.SOUTHERN RY. CO.

Supreme Court of Georgia.

July 10, 1898.

Carriers op Passengers—Breach op Contract —Damages—Pleading.

Where, in the county in which a contract of passenser carriage is to be performed, a suit is brought against a railroad company upon a cause of action arising out of a failure and refusal to perform such contract, and the declaration is so drawn as to be susceptible of two constructions, under one of which the action could be construed to be a suit for a tort aris ing from the breach of duty, and under the other a suit for the breach of the contract of carriage, and a demurrer is filed to such action upon the ground that the court had no jurisdiction to try the cause of action sounding in tort, it appearing that the wrongful act complained of was committed in a county other than that in which the suit was brought; and where, in order to meet such demurrer, the plaintiff amended his declaration by striking therefrom the elements of damage alleged to have resulted from the commission of such tort, and, thus electing to proceed as for the breach of a contract, the plaintiff further amended his declaration by alleging generally that he had been damaged in the sum of $300 by reason of the breach by the defendant of its contract, without stating the elements of such damage, how or wherein they accrued, and a special demurrer to the declaration as amended was filed, upon the ground that it did not allege with sufficient certainty the elements of damage relied upon by the plaintiff to enable the defendant to defend the action, —the court erred in sustaining the demurrer and dismissing the plaintiff's action generally, the declaration as amended being sufficient to sustain a recovery for nominal damages. (Syllabus by the Court.)

Error from superior court, Dodge county; C. C. Smith, Judge.

Action by J. B. Sutton against the Southern Railway Company to recover damages for a breach of contract of carriage. From a judgment dismissing the declaration, plaintiff brings error. Reversed.

Roberts & Burch, for plaintiff in error.

De Lacy & Bishop, for defendant in error.

ATKINSON, J. The plaintiff sued the defendant in Dodge county. He alleged: That he purchased from the defendant's agent a ticket from Jacksonville, Fla., to Eastman, Ga., which was in Dodge county, by the terms of which the defendant company bound itself to transport him from the point at which he purchased the ticket to Eastman. That under this ticket petitioner boarded the passenger train of the defendant, upon which it undertook to transport him, and was by the defendant conveyed upon his route as far as Jesup, Ga., which is in Wayne county, at which point, as he alleges, he was forcibly put off the train by the conductor; and that the conductor then and there refused to permit him to pursue hi3 journey, thus refusing to carry out the company's contract of passsenger carriage. He alleged that by reason of the conduct of the defendant he had been damaged in the sum of $500, in this, to wit: "In failing to meet an important business engagement, and in the loss of time and exposure to the inclemency of the weather for five hours in Jesup during a very cold night, and the humiliation to which he was subjected in being made to get off the train by the defendant's conductor." To the declaration the defendant demurred, among others, upon the ground that "this court has no jurisdiction to try said case, the same being a suit for damages for an alleged tort, wherein the original cause of action originated in Wayne county, Ga., as shown by the peti-tion, and no valid Judgment could be rendered In this case in the county of...