Hooks v. Fitzenrieter

13 S.W. 230, 76 Tex. 277, 1890 Tex. LEXIS 1250

• Court: Texas Supreme Court
• Decided: February 25, 1890
• Docket: No. 2732
• Status: Published

Opinion

HOBBY, Judge.

There was no error, we think, in sustaining the de-

fendant’s exceptions to the plaintiff’s petition. It alleged with particularity the contract entered into between plaintiff and defendant; its breach by the latter, for which actual damages were claimed in the sum of $150. It does not appear whether the contract was in writing or verbal. The breach was further alleged to have been committed by the defendant “willfully, fraudulently, and with malice,” for which exemplary damages were sought in the sum of $2000. The claim for actual damages being for an amount less than $200, it was therefore not within the jurisdiction of the court, unless the averments were sufficient to entitle plaintiff to a recovery for exemplary damages, which were claimed in the sum of $2000. Whether they were sufficient to authorize such a recovery is the question in the case. This question has been discussed in several cases. In the case of Rich v. Railway, 87 New York, 390, it was elaborately treated.

There is high authority for the doctrine that “the allowance of exemplary damages for the breach of a contract is a departure from the true principles of the law of damages and of public policy.” Field on Dam., p. 28, note; Railway v. Shirley, 54 Texas, 148.

In our State, however, the right to sue for “ a breach of a contract and for a tort, when both grow out of the same transaction and can be properly litigated together,” is recognized. Id.

It would be difficult to formulate an inflexible rule which would apply to all cases of this character.

The allegations upon which the exemplary damages are sought should show that the manner in which the breach was committed by the defendant amounted to a tort for which an action would lie for exemplary damages, independently of any right to recover actual damages by reason of the breach of contract alone.

The general averments in the petition before us, that it was done “ with malice, willfully, and fraudulently,” etc., are not sufficient for this purpose. The facts should be stated attending the breach, so that it could be ascertained from them whether they constituted, as alleged by the pleader, malice and fraud, and whether the circumstances connected with the breach amounted to a tort. At common law no such recovery could be had of exemplary damages for the breach of a contract, except in cases of breach of promise of marriage.

In many cases now against common carriers they are recoverable to a great extent by reason of the supposed violation of some duty springing out of the relation between the parties.

The judgment in the case, we think, should be affirmed.

Affirmed.

Adopted February 25, 1890.