
    No. 9189.
    Harogis v. Royal Fuel Company.
    
      Pleading — Evidence. Evidence of the breach of a contract is not admissible where no contract is alleged.
    
      Error to Denver District Court, Hon. Chas. C. Butler, Judge.
    
    Mr. Edmund J. Churchill, for plaintiff in error.
    
      Mr. Ralph Hartzell, for defendant in error.
   Opinion by

Mr. Justice Allen:

This is an action wherein the plaintiff seeks to recover damages for personal injuries. The complaint alleges, in substance, that the plaintiff was a servant of the defendant; that as such servant his work consisted in mining coal; that as a part of his work he attached a fuse to a charge of dynamite for the purpose of blasting out coal and rock; that on a certain date the defendant “negligently and carelessly furnished and provided for the plaintiff’s use” a defective fuse; that plaintiff used the fuse in the usual manner, and that because of the defect a premature explosion of a charge of dynamite took place, resulting in the injuries. It is alleged that the premature explosion was due proximately and directly to the negligence of the defendant. The form of the action as framed by the complaint is ex delicto and recovery of damages is sought to be grounded upon negligence.

Upon trial and at the conclusion of plaintiff’s evidence the court granted defendant’s motion for a nonsuit. The plaintiff has sued out a writ of error.

The theory of the plaintiff in error is that under the allegations of the complaint the form of the action may be deemed to be ex contractu, and that the defendant is liable as for the breach of an implied warranty with reference to the quality and fitness of the fuse in question. It is contended that the evidence should have been submitted to the jury on this theory. We are of the opinion, however, that the complaint states no cause of action on a breach of contract, and no such cause of action being stated, there can be no recovery on the ground of any liability ex contractu. D. & R. G. R. R. Co. v. Iles, 25 Colo. 9, 52 Pac. 211. There was no error in granting the nonsuit.

The judgment is affirmed.

Affirmed.

Chief Justice Hill and Mr. Justice Bailey concur.  