Milledgeville Water Co. v. Fowler , 129 Ga. 111 ( 1907 )

Beck, J.

(After stating the facts.) The plaintiff’s case, as stated in his petition and as’ made by his evidence, was plainly one arising from a breach of a contract. The relation of the parties to the action was plainly contractual. The defendant, under the terms of the contract, was under obligation, upon the payment in advance of a certain sum by the plaintiff, to furnish water to plaintiff at his residence. The plaintiff contended, and submitted proof to show, that he had performed his part of the contract by payment in advance of the requisite amount, and that the defendant had failed and refused to perform his part. Counsel for the plaintiff in their brief and argument insist that, under the pleadings and facts of the case, a right of action as for a tort had been, shown; and while the movant does not except to any portion of the charge, and the charge itself is not in the record, the case must have been submitted to the jury on that theory. Otherwise we can not account for the verdict.

Mere breach of a contract can not be converted into a tort by showing that failure to perform upon the part of the one committing the breach had resulted in great inconvenience, trouble, annoyance, and hardship to the other party to the contract.

The Civil Code, §3807, provides that “A tort is a legal wrong committed upon the person or property independent of contract. It may be either — 1. A direct invasion of some legal right of the individual. 2. The infraction of some public duty by which special damage accrues to the individual. 3.. The violation of some private obligation by which like damage accrues to the individual. In the former case, no special damage is necessary to entitle the party to recover. In the two latter cases such damage is necessary.” Section 3810, contained in the chapter on torts, provides that “Private duties may arise either from statute, or flow from relations created by contract express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action.” And in L. & N. Railroad Co. v. Spinks, 104 Ga. 692, 30 S. E. 968, it was decided that, “In arriving at a correct understanding of the meaning of section 3807, the words 'independent of contract’ must be understood as applying to each one of the three subdivisions embraced in that-section. Accordingly, the third subdivision means the same as if it read, ‘the violation of some private obligation, independent of contract, by which like damage accrues to the individual;’ and section 3810, in so far as it refers to private duties flowing from 'relations created by contract, express or implied,’ means the same thing.

“Every person who makes a contract of any kind is, of course, under a duty of performing it; but it would never do to hold that every breach of a civil contract, though necessarily in a sense involving a breach of the duty thereby imposed, would give rise to an action ex delicto.” Judge Cooley says, after pointing out certain exceptions to the rule, “The rule is general that where contract relations exist the parties assume toward each other no duties whatever besides those the contract imposes.” 1 Cooley on Torts (3d ed.), 160. If one seriously doubts whether this is an action ex contractu, the doubt will disappear upon reading the Spinks case, supra, and the authorities cited.

There is an important and vital point of difference between the instant case and that of Freeman v. Macon Gas & Water Co., 126 Ga. 843, 56 S. E. 61, 7 L. R. A. (N. S.) 917. In the latter case it was held that the petition as amended set forth a cause of action sounding in tort, and the particular tort there alleged was a wilful breach by the defendant company of a public duty which it owed to the plaintiff as a consumer of the water it undertook to supply to the inhabitants of the city. The contract was merely alleged by way of inducement for the purpose of establishing the nature and scope of the duty and liability of the company relatively to the general public. And the corporation against which the suit was brought was in the exercise of a franchise granted by the municipality pursuant to a statute, which conferred upon it the right to use the streets of the city on condition that it would therein lay its mains and furnish the municipality and its inhabitants with a supply of water at a fixed toll. In the case at bar, the defendant is not shown to have owed the plaintiff any duty independent of the contract with him. So far as it appears from the record, the defendant company was not in the exercise of any franchise granted by the municipality, nor was it in any way ■ obligated to serve the public at large, nor the plaintiff as a member thereof.

The plaintiff’s action being one ex contractu, as we have seen, upon proof of a.breach thereof he would be entitled to at least nominal damages. But in order to recover substantial, compensatory damages, such as were awarded in the present case'by the jury, there must be some evidence of actual damages, and the amount thereof. It is even admitted in the brief of counsel that there is no evidence showing that there were “any damages sustained in money,” and that being true, the. plaintiff has failed entirely to carry the onus of proving the amount of his damages, a burden which the law imposes upon the plaintiff in every such action as the present one. Clarke v. Tel. Co., 112 Ga. 633, 37 S. E. 870; Grier v. Ward, 23 Ga. 145; Western Union Tel. Co. v. Waxelbaum, 113 Ga. 1017, 39 S. E. 443, 56 L. R. A. 741.

Judgment reversed.

All the Justices concur.