Gulf, C. & S. F. Ry. Co. v. Conder

• Decision Date: 14 April 1900
• Citation: 58 S.W. 58
• Parties: GULF, C. & S. F. RY. CO. v. CONDER.
• Court: Texas Court of Appeals

58 S.W. 58

GULF, C. & S. F. RY. CO. v. CONDER.

Court of Civil Appeals of Texas.

April 14, 1900.¹

Appeal from district court, Fannin county; A. P. Park, Special Judge.

Action by J. G. Conder, by his next friend, J. C. Rubell, against the Gulf, Colorado & Santa Fé Railway Company, for damages. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and Chas. K. Lee, for appellant. Rubell & Truett, John C. Meade, and Rich'd B. Semple, for appellee.

RAINEY, C. J.

This is a suit for damages charged to have been occasioned appellee by the conductor in charge of appellant's train by having him illegally arrested while traveling thereon as a passenger, and ejected therefrom, and imprisoned by the officer making the arrest. The proof shows that appellee boarded appellant's passenger train at Pecan Gap after purchasing a ticket for Wolfe City. When the train reached Ladonia, a station on appellant's road between Becan Gap and Wolfe City, the conductor in charge of the train caused the city marshal of Ladonia to enter the car and arrest appellee. The conductor believed at the time that appellee was the party that assaulted him with a pistol at Celeste sometime prior thereto, but in this he was mistaken. The marshal took charge of appellee, searched him for a pistol, but found none, carried him off the train, imprisoned him in a filthy calaboose for about 1½ hours, and then took him out of the calaboose and held him in custody until late in the evening when he was released. The occurrence of the assault upon the conductor had been reported to the management, and he had been instructed to not have any arrest made therefor. It is urged by appellant's counsel that the conductor, in having the arrest made, acted wholly without authority, either express or implied, and contrary to the regulations and commands of the defendant, and that defendant is not liable therefor. The defendant was under contract to safely transport the appellee from Pecan Gap to Wolfe City, and he was entitled to protection from injury from the wrongful acts of defendant's servants. The conductor was the representative of the defendant employed to discharge the duty imposed upon it by virtue of its contract, and the defendant must be held liable for the wrongful acts of the conductor which resulted in injury to the appellee. It is immaterial what instructions had been given the conductor by his superiors, for the defendant had intrusted him with the performance of the duty imposed upon it, and it cannot avoid liability by showing that the conductor acted willfully and maliciously. Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634. In the case cited, Stayton, C. J., in discussing the duty of carriers to passengers, says: "It has been steadily held to be the duty of carriers of passengers to protect them, in so far as this can be done by the exercise of a high degree of care, from the violence and insults of the carrier's own servants; and the inquiry whether this duty arises from contract or from the nature of the employment becomes unimportant, except that the duty goes with the carrier's contract, however made, whereby the relation of carrier and passenger is established." The arrest of the appellee and his expulsion from the train were caused by the wrongful acts of the conductor, and violative of a duty imposed upon the defendant by the contract of carriage it had entered into, which duty the defendant had delegated the conductor to perform. We therefore hold that the defendant is liable for the injury to appellee that proximately resulted from the wrongful act. Railway Co. v. Donahoe, 56 Tex. 162; Railway Co. v. Kinnebrew (Tex. Civ. App.) 27 S. W. 631; Railway Co. v. Warner (Tex. Civ. App.) 49 S. W. 254; Gillingham v. Railway Co. (W. Va.) 14 S. E. 243, 14 L. R. A. 798; Duggan v. Railway Co. (Pa.) 28 Atl. 182.

The appellant's counsel asked a charge (which was refused) to the effect that, if plaintiff was entitled to recover, the jury could only find damages for a breach of the contract to carry him safely to his destination, but could not recover the damages resulting from the imprisonment and detention after the departure of the train. It is insisted that the refusal to give this charge is error; the contention being that defendant, if liable, was only liable for the wrongful ejection, and not for the imprisonment and detention after departure of the train....