This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If the duty which the law imposes upon a common carrier and the duty which he undertakes by his contract with the shipper or passenger, cover the same subject-matter a violation of such duty may be treated by the injured party as either contract or tort at his election.1 The injured party may maintain an action against the carrier in tort if he so wishes;2 and tort liability will ordinarily be assumed unless the injured party shows his intention to rely upon his contract.3 The fact that a special contract has been entered into between the shipper and the carrier by the terms of which the carrier's common-law liability is altered, does not prevent the shipper from asserting a common-law liability against the carrier.4 In such case the carrier must set up the special contract if he wishes to take advantage of any defenses which he may wish to assert thereunder.5 An action against a common carrier for conversion,6 or for failure to forward to a passenger a ticket for which the carrier has been paid,7 or for the refusal of an employe to return change,8 may be treated as a tort. If the injured party elects, he may maintain an action against the carrier in contract wherever the wrongful act of the carrier is both a breach of his contract and a violation of his public duty.9 When a passenger pays his fare, a contract arises to carry him safetly, upon which contract he may maintain an action for the breach thereof.10 If the wrongful act of the carrier is not a violation of his contract, the only liability of the carrier is one in tort.11 If the carrier wrongfully refuses to furnish cars,12 or if he negligently issues a bill of lading in which the property is misdescribed,13 the only liability of the carrier is in tort.
10 Atlantic Gulf & Phillipine Co. v. Phillipine Islands, 219 U. S. 17, 65 L. ed. 70.
1 Central, of Georgia, Ry. Co. v. Chicago Portrait Co., 122 Ga. 11, 106 Am. St. Rep. 87, 49 S. E. 727; Owens Bros. v. Chicago, Rock Island & pacific Ry. Co., 139 la. 538, 117 N. W. 762; Erie Railroad Co. v. Steinberg, 94 0. S. 189, L. R. A. 1917B, 787, 113 N. £. 814; Graham v. Chicago, Milwaukee & St. Paul Ry. Co., 53 Wis. 473, 10 N. W. 609.
2 Georgia. Central, of Georgia, Ry. Co. v. Chicago Portrait Co., 122 Ga. 11, 106 Am. St. Rep. 87, 49 S. E. 727.
Iowa. Zabron v. Cunard S. S. Co., 151 la. 345, 34 L. R. A. (N.S.) 751, 131 N. W. 18.
Minnesota, McGrath v. Northern pacific Ry. Co., 121 Minn. 258, L. R. A. 1915D, 644, 141 N. W. 164.
New York. Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347, 102 Am. St. Rep. 503, 70 N. E. 857.
Oklahoma. Ft. Smith & Western R. Co. v. Ford, 34 Okla. 575, 41 L. R. A. (N.S.) 745, 126 Ac. 745.
South Carolina. National Bank v. Southern Ry., 107 S. Car. 28, 91 S. E. 972.
Washington. Bartelt v. Oregon Ry. & Navigation Co., 57 Wash. 16, 135 Am. St. Rep. 959, 106 Ac. 487.
3 Central, of Georgia, Ry. Co. v. Chicago Portrait Co., 122 Ga. 11, 106 Am. St. Rep. 87, 49 S. E. 727; Owens Bros. v. Chicago, Rock Island & pacific Ry. Co., 139 la. 538, 117 N. W. 762; Ft. Smith & Western R. Co. v. Ford, 34 Okla. 575, 41 L. R. A. (N.S.) 745, 126 Ac. 745.
4 Southern pacific Co. v. Arnett, 111 Fed. 849; Southern Ry. Co.v. Webb, 143 Ala. 304, 111 Am. St. Rep. 45,
5 Am. & Eng. Ann. Cas. 97, 39 So. 262; McGrath v. Northern Pacific Ry. Co., 121 Minn. 258, L. R. A. 1915D, 644, 141 N. W. 164; Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 Ac. 642; Bartelt v. Oregon Railroad & Navigation Co., 57 Wash. 16, 135 Am. St. Rep. 959, 106 Ac. 487.