P. C. & S. L. Railway Co. v. Hedges

41 Ohio St. (N.S.) 233

Opinion

By the Court.

The petition asked damages for horses killed by defendant’s train, and counted upon two distinct wrongful acts as causes of the killing; first, neglect to keep in repair a fence as required by contract; and second, negligence in running the train. A motion to require plaintiff to elect whether he would rely upon the breach of contract, or the tort, was overruled.

Meld: The doctrine of election applies where one wrongful act is charged, and the plaintiff is entitled to treat it as having either of two natures. But the addition of a tort to a separate and distinct act in violation of contract, does to a separate and distinct act in violation of contract, does not deprive the injured party of the right to complain at the same time, of both wrongs. Of course he cannot recover double damages.

Judgment affirmed.