Summary
holding that negligent failure to perform a contract is a breach of contract, but if performed negligently, the remedy is in tort.
Summary of this case from Bozeman v. Centricity, Inc.Opinion
6 Div. 840.
November 3, 1955. Rehearing Denied February 2, 1956.
Appeal from the Circuit Court, Jefferson County, Gardner F. Goodwyn, Jr., J.
Lipscomb, Brobston, Jones Brobston, Bessemer, for appellant.
A passenger, injured through the negligence or carelessness of the carrier, may proceed either upon the contract, alleging the careless or negligent acts of the defendant as a breach of the contract, or proceed in tort, making the carelessness and negligence of the company a ground of his right of recovery. Malcomb v. Louisville N. R. Co., 155 Ala. 337, 46 So. 768, 18 L.R.A., N.S., 489, 130 Am.St.Rep. 52; Louisville N. R. Co. v. Dickson, 15 Ala. App. 423, 73 So. 750; Id., 199 Ala. 699, 74 So. 1005; Doyle v. City of Coral Gables, 159 Fla. 802, 33 So.2d 41; Jacksonville St. Ry. Co. v. Chappell, 22 Fla. 616, 1 So. 10; Central R. Banking Co. v. Roberts, 91 Ga. 513, 18 S.E. 315; Tefft v. Boston El. Ry. Co., 285 Mass. 121, 188 N.E. 507; De Roire v. Lehigh Valley R. Co., 205 App. Div. 549, 199 N.Y.S. 652; Causey v. Davis, 185 N.C. 155, 116 S.E. 401; Southern R. Co. v. Clark, 34 Ga. App. 312, 129 S.E. 293; Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 619, 48 Am.Rep. 134; Nevin v. Pullman Palace Car Co., 106 Ill. 222, 46 Am.Rep. 688; 1 C.J.S., Actions, p. 1119, § 49; McClure v. Johnson, 50 Ariz. 76, 69 P.2d 573; Nagel v. Thompson, 237 Mo. App. 1061, 170 S.W.2d 416; Williams v. Illinois Cent. R. Co., 360 Mo. 501, 229 S.W.2d 1, 20 A.L.R.2d 322; McClellan v. Tennessee Elec. Power Co., 174 Tenn. 58, 123 S.W.2d 822, 120 A.L.R. 928. The nature of a cause sued upon by a party entitled to sue either in tort or upon contract is to be determined by a construction of the complaint. Louisville N. R. Co. v. Dickson, supra; St. Louis, I. M. S. Ry. Co. v. Sweet, 63 Ark. 563, 40 S.W. 463; Patterson v. Augusta S. R. Co., 94 Ga. 140, 21 S.E. 283; Kansas Pac. Ry. Co. v. Kunkel, 17 Kan. 145; Louisville N. R. Co. v. Hall, 219 Ky. 528, 293 S.W. 1091; Williams v. Illinois Cent. R. Co., supra. The statute of limitations as to actions on contract is applicable to an action for personal injuries by one who relies upon the careless acts of the defendant as a breach of the contract rather than as a ground of recovery ex delicto. Tennessee Coal, Iron R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459.
Bainbridge Mims, Birmingham, and Huey, Stone Patton, Bessemer, for appellee.
In actions ex contractu, special damages sustained because of peculiar circumstances, and not within the contemplation of parties when the contract was made, and of which circumstances the carrier had no knowledge, cannot be recovered. Nashville, C. St. L. Ry. v. Campbell, 212 Ala. 27, 101 So. 615; Alabama Water Service Co. v. Wakefield, 231 Ala. 112, 163 So. 626; McMillain Lumber Co. v. First Nat. Bk., 215 Ala. 379, 110 So. 602. An action against a common carrier for allowing or permitting a passenger to alight at an unsafe place is on the case for the breach of duty arising out of the relationship between passenger and carrier and not ex contractu. Montgomery Street Ry. Co. v. Mason, 133 Ala. 508, 32 So. 261. If the cause of action, as stated in the complaint, arises from a breach of promise, the action is ex contractu; but, if the cause of action arises from a breach of duty arising out of the contract, it is in form ex delicto, and case. Wilkinson v. Moseley, 18 Ala. 288; Mobile Life Ins. Co. v. Randall, 74 Ala. 170; Newton v. Brook, 134 Ala. 269, 32 So. 722. Two separate, distinct causes of action involving the breach of separate and distinct duties cannot be joined in one and the same count. Louisville N. Rd. Co. v. Smith, 222 Ala. 618, 133 So. 905; McDougal v. Alabama Great Southern R. Co., 210 Ala. 207, 97 So. 730; Ford v. Henderson, 243 Ala. 274, 9 So.2d 881.
The complaint is as follows:
" Count A: Plaintiff claims of defendant, Crescent Transit, Inc., a corporation, the sum of Fifteen Thousand Dollars ($15,000.00) for that, heretofore, on, to-wit: January 15, 1952, the defendant, Crescent Transit, Inc., a corporation, was the owner and operator of a transit system and operated passenger buses for hire in Jefferson County, Alabama, within the jurisdiction of this Court, and on said date, and prior thereto, regularly operated a bus for the carriage of passengers between Fairfield, Alabama, and Bessemer, Alabama, and on, to-wit: January 15, 1952, at about 6:00 p. m. plaintiff entered into an implied contract with the defendant wherein and whereby, for a valuable consideration, the defendant impliedly contracted to safely transport and carry the plaintiff from the city of Fairfield, Alabama, to the regular and customary stopping place of defendant's buses on 19th Street at its intersection with 29th Avenue, Bessemer, Alabama. That on said date, pursuant to the said contract plaintiff boarded one of defendant's buses in Fairfield, Alabama, and paid her fare demanded by defendant to be transported under said agreement to the customary stopping place of said bus of defendant on 19th Street at its intersection with 29th Avenue, Bessemer, Alabama. That defendant did not perform or fulfill the contract on its part, namely, to safely transport plaintiff to said point of disembarkation, but, on the contrary, defendant, at about 6:45 p. m., on said date in violation of said contract of carriage operated said bus to a point beyond the usual and customary stopping place and point of disembarkation of passengers at 19th Street and 29th Avenue, Bessemer, Alabama; and to a point, to-wit: thirty feet from and beyond said usual and customary stopping place and point of disembarkation of passengers, in close proximity to an open culvert, which point at which defendant stopped said bus was not a reasonably safe place for disembarkation of passengers, and defendant required plaintiff to there disembark from said bus, and as a proximate consequence of defendant's breach of said contract in carrying plaintiff beyond her point of destination and usual and customary point of disembarkation, and requiring her to alight or disembark at said place in close proximity to said open culvert, she fell into said culvert and was grievously injured about her head, body and limbs, in that: she was thereby contused, bruised, lacerated; that her arm and shoulder were fractured, and she was required to spend much time from her household duties in a hospital, and to expend large sums of money in and about healing her said wounds, and she was rendered permanently disabled, and that she received all of her said wounds and injuries as a proximate consequence of the said breach of implied contract of carriage by defendant."
" Count B: Plaintiff claims of defendant, Crescent Transit, Inc., a corporation, the sum of Fifteen Thousand Dollars ($15,000.00) for that, heretofore, on, to-wit: January 15, 1952, the defendant, Crescent Transit, Inc., a corporation, was the owner and operator of a transit system and operated passenger buses for hire in Jefferson County, Alabama, within the jurisdiction of this Court, and on said date, and prior thereto, regularly operated a bus for the carriage of passengers between Fairfield, Alabama and Bessemer, Alabama, and on, to-wit: January 15, 1952, at about 6:00 p.m. defendant impliedly contracted with the plaintiff, for a valuable consideration, to safely transport and carry the plaintiff from the City of Fairfield, Alabama, to the regular and customary stopping place of defendant's buses on 19th Street at its intersection with 29th Avenue, Bessemer, Alabama. That on said date, pursuant to said contract, plaintiff boarded one of defendant's buses in Fairfield, Alabama, and paid her fare demanded by defendant to be transported under said contract to said usual customary stopping place, that defendant did not perform or fulfill the contract on its part, namely, to safely transport plaintiff to said point of disembarkation but, on the contrary, defendant, at about 6:45 p. m. on said date negligently stopping said bus for the purpose of plaintiff's disembarkation at a point, to-wit: thirty feet from and beyond said customary stopping place, which point at which defendant stopped said bus was not a reasonably safe place for disembarkation of passengers, but, on the contrary, was unsafe and dangerous in that said point of disembarkation was in close proximity of an open culvert obscured to plaintiff by darkness, and defendant negligently required or negligently permitted plaintiff to there disembark from said bus, and as a proximate consequence of the defendant's negligent breach of said contract in carrying plaintiff beyond her point of destination and negligently requiring or negligently permitting her to alight at an unsafe place in close proximity to an open culvert then and there obscured to the plaintiff by darkness, she fell into said open culvert and was grievously and seriously injured about her head, body and limbs in that: she was thereby contused, bruised, lacerated; that her arm and shoulder were fractured, and she was required to spend much time from her household duties in a hospital, and to expend large sums of money in and about healing her said wounds, and she was rendered permanently disabled, and that she received all of her said wounds and injuries as a proximate consequence of the negligent breach of implied contract of carriage by defendant."
This is an appeal from a judgment of nonsuit suffered by the plaintiff. As amended, the complaint consisted of Counts A and B. The trial court sustained the demurrer to Count A and overruled the demurrer as to Count B. After overruling the demurrer to Count B the defendant plead the statute of limitations of one year, Code 1940, Tit. 7, § 26. The plaintiff demurred to this special plea and upon the overruling of the plaintiff's demurrer, the plaintiff took a nonsuit and brings this appeal.
It appears that Count A was construed to be a suit for breach of contract and Count B in tort. We construe both counts to be a suit in contract claiming damages for the breach of an alleged implied contract for injuries resulting during the period when the plaintiff entertained the relation of passenger of the defendant transit company as a common carrier.
The two counts will more fully appear in the report of the case, but we will here state their substance. Count A alleges that the defendant (appellee) entered into an "implied contract" for a valuable consideration to safely transport the plaintiff from the City of Fairfield to a regular and customary stopping place of the defendant's bus in the City of Bessemer; that the defendant breached this contract by transporting her thirty feet beyond said customary stopping point and required and permitted her to alight at said point, which was not a reasonably safe place for disembarkation of passengers and as a proximate consequence of said breach of contract the plaintiff fell into an open culvert, obscured to appellant by darkness, causing her alleged injuries. Count B charges the defendant with the negligent breach of such implied contract.
From the rulings below and the argument of counsel, it would seem that the court concurred in the contention of the defendant that there could be no cause of action for the breach of the alleged contract by such passenger for personal injuries as alleged unless the defendant was guilty of negligence, in which case the action should be in tort. On this theory the court sustained demurrer to Count A and, considering that Count B was in tort, overruled the demurrer to Count B. As stated, the defendant then plead the statute of limitations of one year to Count B on the theory that the count was in case for the negligence of the defendant and, of consequence, overruled plaintiff's demurrer to this plea which superinduced the nonsuit.
We entertain the view that these rulings were laid in error. Both counts are of the same sort — in assumpsit. They both claim damages for the breach of an implied contract. Count B carried the additional averment that the breach was negligent and the other count, A, only alleges the breach and does not allege in terms a negligent breach.
Both counts are based upon the breach of a contract. The fact that they allege that the contract was implied does not alter their status as for the breach of a contract. The ruling of the court sustaining the demurrer to Count A was predicated on the theory that such a state of facts as therein alleged did not state a cause of action. In this we differ. If the proof sustains the allegations, the breach of such a contract is actionable in assumpsit. That breach could be either voluntary or negligent. The allegation in Count A that defendant breached the contract by doing the act alleged to be a breach, is in substance that it was voluntarily done. So we have in that count an allegation of the existence of a contract and its voluntary breach to the damage of plaintiff — a count in assumpsit.
Count B makes the same allegations as to the existence of the contract, but charges that defendant negligently breached said contract. The gravamen of that count is not a charge of negligence but the breach of the contract. The fact that it was negligently breached does not affect the nature of the cause of action. It was said in one of our leading cases that "if the cause of action as stated in our cases arises from a breach of the contract, the action is ex contractu, but if the cause of action arises from a breach of duty growing out of the contract it is in form ex delicto and case." Mobile Life Ins. Co. v. Randall, 74 Ala. 170; Tennessee C. I. R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459; Waters v. American Cas. Co., 261 Ala. 252, 73 So.2d 524; Sellers v. Noah, 209 Ala. 103, 95 So. 167; Western Union Tel. Co. v. Crumpton, 138 Ala. 632, 36 So. 517. It is also said in the Randall case, supra:
"When there is a contract, either express or implied, from which a common law duty results, an action on the case lies for the breach of that duty: in which case, the contract is laid as mere inducement, and the tort arising from the breach of duty as the gravamen of the action. Thus if a lawyer or physician is engaged by special contract to render professional service, and, in the performance of such service he is guilty of gross ignorance or negligence an action on the case will lie against him notwithstanding such special contract." (Emph. sup.)
We said in the Sizemore case, supra:
"* * * the breach of a contract in not performing the obligation there expressed, or not doing it in the way specified, is not in tort * * *. If defendant omits to enter upon the duty to perform, however negligent that might be, that is not a negligent performance and not a tort. But if he does undertake to perform, his performance may be negligent, giving rise to a tort." (Emph. sup.) 258 Ala. 349, 62 So.2d 463.
"* * * But even when the complaint shows that the breach of the contract was also a negligent failure to perform a duty which the law imposes by reason of such contract, the injured employee may sue either for the breach of the contract when he is a party to it, or it is made for his direct benefit, or may sue in tort for the breach of the duty imposed by law." 258 Ala. 350, 62 So.2d 464.
In the Waters case, supra, we said:
"When the contract does not in terms require reasonable care in doing the act stipulated to be done, the law imposes a duty — but does not imply a contract — to exercise due care in doing the act; and, therefore, when negligence exists in doing that act an action in tort only is available because there is no express or implied contract which is breached." (Emph. sup.) 261 Ala. 258, 73 So.2d 529.
In the case of Malcolm v. Louisville N. R. R. Co., 155 Ala. 337, 46 So. 768, 18 L.R.A., N.S., 489, defendant negligently failed to stop a train for her to be carried pursuant to their contract, thereby causing personal injury to her. The court stated that "All the cases hold that a passenger, injured through the negligence or carelessness of the carrier, may proceed either upon the contract, * * * or proceed in tort, making the carelessness and negligence of the company the ground of his right of recovery". 155 Ala. 339, 46 So. 768-13 C.J.S., Carriers, § 663, p. 1235; 1 C.J.S., Actions, § 49(e-5), p. 1119.
Corpus Juris Secundum also carries the well supported text that:
"A mere breach of a contract, however, which does not involve a breach of public duty on the part of the company as a common carrier cannot be made the basis of an action in tort; * * *." 1 C.J.S., Actions, § 49, p. 1120.
It will be observed that a negligent failure to perform a contract express or implied (as alleged in count B) is but a breach of the contract. But if in performing it, it is alleged that defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action. When plaintiff purchased transportation to a certain place under a contract to carry her to a regular stopping place, there was an implied promise not to carry plaintiff beyond the customary place of discharge (a breach, being actionable in assumpsit), also an implied duty not to negligently cause her to be injured in performing the contract (a breach of which is actionable ex delicto).
The implied duty, not an implied promise to exercise due care not to injure her, must be redressed in a tort action. The breach of a public duty not to negligently injure plaintiff may also be a breach of the contract to stop for her discharge at the customary place. A breach of the contract is in the failure to act, (here, alleged failure to stop at the customary place); but in acting there may also be a breach of the public duty not to negligently stop at a dangerous place and thereby cause plaintiff personal injury, for which an action in case will lie.
Here the only charge against defendant is for the breach of an implied contract, which nonetheless counts on a contract because it was negligently breached. Neither count claims damages for injuries caused by the breach of a duty imposed by law, viz.: The negligence of defendant in putting her off at a dangerous place, but on the contrary, the breach of a contract of carriage.
It follows, as we stated above, and on original deliverance, both counts are in assumpsit. Count A is not subject to the demurrer interposed. The plea of the statute of limitations of one year is not applicable, and the demurrer to it should have been sustained.
Opinion modified on rehearing and application overruled. For the errors noted the judgment is reversed.
Reversed and remanded.
All Justices concur except LAWSON and MERRILL, JJ., who dissent.
On Rehearing
The foregoing opinion prepared in response to an application for rehearing was brought to the full court, although the writer and Justices STAKELY and MERRILL did not participate in the consideration of the opinion delivered on original submission.
I find myself unable to agree with the foregoing opinion in so far as it holds that Count B is in contract, although I readily concede that the question as to whether the count is in contract or in tort is a close one.
In Wilkinson v. Moseley, 18 Ala. 288, quoted in Mobile Life Ins. Co. v. Randall, 74 Ala. 170, Mr. Justice Parsons, writing for the court, said:
"Perhaps the best criterion is this: if the cause of action, as stated in the declaration, arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty growing out of the contract, it is in form ex delicto, and case."
It was necessary to aver the contract in Count B, since a tort by the carrier cannot be committed upon the passenger as such unless the carrier-passenger relationship is created by contract, express or implied. Southern Ry. Co. v. Bunnell, 138 Ala. 247, 36 So. 380.
There is no averment in Count B of an express contract. In fact, it is alleged therein that the defendant "impliedly contracted with the plaintiff." The courts have been inclined to consider complaints of this character (against common carriers) as founded in tort unless a special contract very clearly appears to be made the gravamen or object of the complaint. New Orleans, Jackson Great Northern R. Co. v. Hurst, 36 Miss. 660; Jacksonville St. Ry. Co. v. Chappell, 22 Fla. 616, 1 So. 10; Ft. Smith W. R. Co. v. Ford, 34 Okl. 575, 126 P. 745, 41 L.R.A., N.S., 745.
Construing the averments of Count B as a whole, I am of the opinion that the wrong or injury complained of was that the plaintiff, after acquiring by implied contract the right to travel on defendant's bus to a certain point and there to be afforded a reasonable opportunity to alight in safety, was negligently carried beyond that point by the defendant and "negligently required or negligently permitted to disembark at an unsafe place in violation of defendant's public duty."
In other words, I am of the opinion that the cause of action stated in Count B does not arise out of a breach of promise but from a breach of duty growing out of the contract and that the averments as to the implied contract should be considered as mere matters of inducement in which an action in case arises for a breach of duty to carry the plaintiff as a passenger. Southern Ry. Co. v. Bunnell, supra; Western Union Tel. Co. v. Krichbaum, 133 Ala. 535, 31 So. 607; Western Union Tel. Co. v. Waters, 139 Ala. 652, 36 So. 773; Western Union Tel. Co. v. Favish, 196 Ala. 4, 71 So. 183.
MERRILL, J., concurs in the foregoing views.