Bonner v. De Mendoza

• Decision Date: 21 March 1891
• Citation: 16 S.W. 976
• Court: Texas Court of Appeals
• Parties: BONNER <I>et al.</I> v. DE MENDOZA.<SMALL><SUP>1</SUP></SMALL>

Page 976

16 S.W. 976

BONNER et al. v. DE MENDOZA.¹

Court of Appeals of Texas.

March 21, 1891.

Appeal from Galveston county court; WILLIAM T. AUSTIN, Judge.

Action by Rafel Lopez de Mendoza against Bonner and Eddy, receivers of the International & Great Northern Railway Company, for the value of his property left in one of its passenger cars, and stolen by its employes. Trial to the court. Judgment for plaintiff, and defendants appeal. Affirmed.

Willie, Mott & Ballinger, for appellants. Waul & Walker, for appellee.

HURT, J.

Appellee sued for the value of certain property left by him in one of the passenger coaches of the road. Appellants pleaded general demurrer, general denial, and contributory negligence. The cause was tried by the court without a jury, and judgment for plaintiff for $402, with interest. The court filed its conclusions of law and fact, and, these being excepted to, the case is hereby appealed.

The first error assigned is that the court erred in not sustaining the general demurrer to the petition. Under this it is urged that "the petition nowhere sets up a contract with defendants for carriage, and fails to allege any consideration received by defendants for plaintiff's transportation, or any agreement on the part of defendants to carry him or his baggage." The petition alleged that the defendants are receivers of and operate the International & Great Northern Railway; that plaintiff traveled from Houston to Galveston on one of the trains of said railway company, having prepaid his fare over said line for himself, his family, and his baggage, upon tickets which were recognized by the employes of said company. We think this allegation sufficient to show that the obligation resting upon the receivers was that which a carrier owes to a passenger, and that the petition was sufficient in this respect.

Appellants' second proposition under this assignment is that "a railroad company is not liable for the tortious acts of an employe done outside the scope of his duties, and outside the line of his employment." The petition alleged that, when the train reached Galveston, he was delayed a few minutes in leaving the passenger-car in which he was seated, by reason of the numerous members of his family, and his small children, and the amount of his baggage; "that by the time they were ready to leave the car there were no passengers on the train, and no persons other than the employes of said company; that at the time they were about to leave the car one of said employes, who was in the car, and whose duty it was to be in the car at that time, and who was the only person except plaintiff and his family in the car, warned plaintiff to get off quickly, that the train was about to be moved to another part of the city; that on account of being hurried plaintiff hastened to descend to the depot platform with his family, and by reason of being thus hurried he left in the car in plain sight of the said employe, and through him left in the possession of defendants a small valise containing the funds for his necessary traveling expenses, and other articles essential to a traveler, to-wit: An amount of Mexican silver dollars equal in value to $200 in American silver money; $12 in United States currency; one gold watch and chain, $175; one diamond ring, of the value of $40," etc.; that the employe of said railroad company knew of the valuable character of said valise before he arrived at Galveston, having seen its contents; that, immediately upon alighting upon the platform, he discovered that he had left the said valise in the coach with said valuables therein, and that then the train was moving off with the valise in the same coach with the said employe who had warned him to get off, and that said employe was then the sole occupant, and had been such sole occupant from the time plaintiff left the car; that he at once notified all the officials and employes of the company at hand of his loss, and that the valise was on the train then moving away, and notified them then and there of the valuable character of the contents of the valise then in defendants' exclusive possession, and under their exclusive control, and demanded then and there, within five minutes of the time defendan...