Nevin v. Pullman Palace Car Co.

Citations

• 106 Ill. 222
• 1883 Ill. LEXIS 163

Syllabus

<p>1. Action on the case, and action ex contractu—of the distinction between them. The gravamen of the charge in an action on the case is the tort or wrong of the defendant, notwithstanding such tort or wrong may also be a breach of an express or implied contract, whereas in an action ex contractu the gist of the action is the breach of the contract, without regard to the tortious character of the act of the defendant.</p> <p>2. The general principle seems to be, where the duty for the breach of which the action is brought would not be implied by law by reason of the relations of the parties, whether such relations arose out of a contract or not, and its existence depends solely upon the fact that it has been expressly stipulated for, the remedy is in contract, and not in tort,—when otherwise, case is an appropriate remedy. Assumpsit is a concurrent remedy with case in all cases where there is an express or implied contract.</p> <p>3. Same—when an action on the case lies—against a common carrier. An action on the case will lie for a mere nonfeasance against persons exercising certain public trades or employments, independently of any contract relation, as, -when a common carrier, having the requisite means of transportation, refuses to carry goods or passengers.</p> <p>4. Sleeping oar company—as a carrier—duty and liability—remedy of passenger. A sleeping car company operating and running sleeping coaches over railroads, by force of law, independently of contract, owes duties to the public as a common carrier, one of which is that it shall treat all persons whose patronage it has solicited with fairness and without unjust discrimination, and it is liable in case for a breach of such duty to the party injured thereby.</p> <p>5. Where a passenger, who, under the rules of such company, is entitled to a berth upon payment or tender of the usual fare, and to whom no personal objection attaches, enters the company’s sleeping car at a proper time for the purpose of procuri