International & G. N. R. Co. v. Doolan

• Decision Date: 23 June 1909
• Citation: 120 S.W. 1118
• Court: Texas Court of Appeals
• Parties: INTERNATIONAL & G. N. R. CO. et al. v. DOOLAN et al.

120 S.W. 1118

INTERNATIONAL & G. N. R. CO. et al. v. DOOLAN et al.

Court of Civil Appeals of Texas.

June 23, 1909.

Appeal from District Court, Hays County; L. W. Moore, Judge.

Action by Michael Doolan and others against the International & Great Northern Railroad Company and others. Judgment for plaintiffs and defendants appeal. Reversed and remanded.

S. R. Fisher, J. H. Tallichet, S. W. Fisher, King & Morris, and Baker, Botts, Parker & Garwood, for appellants. W. W. Glass and O. T. Brown, for appellees.

RICE, J.

This suit is predicated on the alleged mistake of the International & Great Northern Railroad Company in selling plaintiff's wife a ticket from Rockdale to College Station in Brazos county on the line of the Houston & Texas Central Railroad Company, instead of a ticket from Rockdale to Coolidge in Limestone county on the line of the Trinity & Brazos Valley Railway, for which she had asked, and for the recovery of resultant damages flowing therefrom. It was alleged in the petition that on the 10th day of May, 1907, the former company was operating a line of road from Rockdale in Milam county to Hearne in Robertson county, and that the latter company was operating a line of railway from Hearne to Mexia in Limestone county, each of said companies maintaining a depot at Hearne; that the Trinity & Brazos Valley Railway Company was operating a line of railway from Mexia to Coolidge in said county, and that on said day Mrs. Mary Doolan, the wife of Michael Doolan, applied to the agent of said first-named company at Rockdale for a ticket over said lines of railway to Coolidge in Limestone county, but, instead of giving her a ticket as demanded, said agent delivered her a ticket via Hearne, entitling her to passage from Rockdale to College, a station on the line of the Houston & Texas Central Railway in Brazos county; that without knowledge of said mistake she entered the cars of said International & Great Northern Company at Rockdale for the purpose of going to Coolidge, but, upon tendering her ticket to the conductor, was for the first time informed of said mistake, and told she must get off at Hearne, but that said conductor refused to aid her at Hearne in correcting the same, and obtaining a proper ticket; that immediately upon the arrival at Hearne she sought the agent of both of said first-named companies for the purpose of procuring a ticket to her destination, but was unable to find the agent of either company, and in consequence failed to procure a ticket; that upon the arrival of the Houston & Texas Central's north-bound train she applied to the conductor for passage to Mexia, tendering the fare therefor, but he refused to take her, by reason of all of which she was compelled to remain at Hearne until the next day; that on account of the failure of defendants to furnish fire in their waiting room at Hearne on the night in question, the weather being rainy, cold, and damp, she contracted a cold, which settled upon her lungs, from which she has suffered great injury; that she was mentally worried and distressed by reason of the delay and being caused to remain in said depot, as well as on account of the refusal of the conductor of the Houston & Texas Central to give her passage as requested, by reason of all of which she suffered further damage, stating the amounts thereof. Appellants each answered by pleas setting up improper joinder of parties and by general demurrers and general denials. A jury trial resulted in a verdict and judgment for plaintiffs against both defendants jointly and severally for the sum of $1,000, from which this appeal is prosecuted.

Mrs. Doolan testified that she applied at Rockdale to the agent of the International & Great Northern Company for a ticket to Coolidge in Limestone county, spelling the same out to him, telling him that if he could not sell her a ticket that would carry her direct through, she would rather wait until the next day, but that the agent, after looking at his book, told her that he could sell her a ticket direct to Coolidge, and that she would arrive there at 5 o'clock the next morning. This was directly contradicted by the agent, who testified that she asked for a ticket to College, which he gave her. The record further discloses that she ascertained her mistake upon tendering her ticket to the conductor, who told her that she would have to get off of his train at Hearne. It does not appear that she asked the conductor at this time, or at any other time, to aid her in procuring a proper ticket at Hearne; and, according to the evidence, she would necessarily have to get off at Hearne, whether she intended to go to College or to Coolidge. And there is evidence tending to support the other allegations in her petition, except that it is shown that upon arrival at Hearne, instead of not being able to find the agent as alleged, she found and asked him for a ticket to Coolidge, and he informed her that there was no such place, after which she remained in the depot to await the north-bound Houston & Texas Central train, which arrived at 1:45 a. m., and, being refused permission to ride thereon, waited in the depot until 3 o'clock, when she was taken to a hotel, where she spent the remainder of the night, resuming her journey the next day. She arrived at Coolidge the next night.

We overrule appellants' first assignment of error complaining of the action of the court in not sustaining their pleas of misjoinder of parties plaintiff. While it is improper and unnecessary to join the wife as plaintiff in an action brought by the husband to recover damages sustained by her, still it is not such error as will justify a reversal of the judgment. Lee v. Turner, 71 Tex. 264, 9 S. W. 149; San Antonio Street Ry. v. Helm, 64 Tex., 147.

The court gave the following in charge to the jury: "If the agent at Rockdale was guilty of negligence by the mistake in making out and delivering to her a ticket to College Station, instead of to Coolidge, and that if this negligence produced directly and proximately any injury, such as the allegations and proof established, if any, then the railroad companies were liable for such injuries as were created as the direct and proximate cause thereof, if any." This is assailed by appellants in their second assignment as being upon the weight of evidence, and as tending to cause the jury to believe that, in the opinion of the court, it was an established fact that the agent was negligent in selling the ticket, and that such negligence resulted in injury to the plaintiffs. And in their third assignment it is criticised as allowing a recovery against both, if the jury should believe from the evidence that the ticket agent of the International & Great Northern Railroad Company was negligent in selling the same, because there was no allegation and proof of partnership between said defendants, nor was it alleged and shown that the agent at Rockdale was the agent of any company other than his own. While the first ground urged is not, in our judgment, reversible error, still we are inclined to believe that the charge is probably subject to the criticisms urged, and might have had a tendency to impress the jury with the idea that, in the opinion of the court, the facts as grouped established the negligent conduct of the ticket agent in selling the ticket, and was therefore improperly given. M., K. & T. Ry. Co. of Texas v. Williams, 17 Tex. Civ. App. 675, 40 S. W. 161.

We agree with appellants as to the second objection urged, for the reasons stated. There was no pleading nor proof of partnership between the defendants, nor that the agent at Rockdale represented any one except the International & Great Northern Railroad Company. The ticket purchased by Mrs. Doolan contained the following provision: "In selling this ticket for passage over other lines this company acts only as agent, and is not responsible beyond its own line." Certainly the Houston & Texas Central Railroad Company could not be held liable for the alleged mistake of the International & Great Northern Railroad Company in selling Mrs. Doolan the wrong ticket, unless there was some proof of partnership, or that the agent at Rockdale represented both companies. Counsel for appellee, in support of his contention that both companies are liable, relies upon the case of Blanks v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.), 116 S. W. 377, lately decided by this court. A writ of error, however, has been granted therein by the Supreme Court, in which it is still pending. That case, however, does not undertake to pass upon the point here presented. It was there expressly held that the statute of 1905, then under consideration, was simply a venue statute, regulating the venue in which suits might be brought, but that the same did not undertake to fix liability as against connecting carriers. Nor is the contention of app...