Missouri, K. & T. Ry. Co. of Texas v. Reasor

• Decision Date: 22 February 1902
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. REASOR.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 332

MISSOURI, K. & T. RY. CO. OF TEXAS v. REASOR.¹

Court of Civil Appeals of Texas.

February 22, 1902.

Appeal from district court, Grayson county; Rice Maxey, Judge.

Action by J. C. Reasor against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Modified.

T. S. Miller and Head & Dellard, for appellant. Randell & Wood, for appellee.

TEMPLETON, J.

The appellee, J. C. Reasor, was engaged in working as messenger of the American Express Company, and as baggageman of the appellant, the Missouri, Kansas & Texas Railway Company of Texas; the work being done on appellant's trains running between Denison and Sherman. A train on which appellee was at work collided with another train, and he received injuries, on account of which he brought suit against appellant, and recovered judgment. It was shown that appellee, by the terms of the contract between appellant and the express company, and of his contract with the express company, assumed all risks of accidents which he might meet with or sustain in the course of his employment as messenger, and the jury was instructed to find for appellant on that issue. No question concerning the correctness of this charge is presented.

The court charged the jury, in substance, that it was the duty of the defendant to accept and transport on its trains the baggage of passengers, and, even though the plaintiff was on the train in question as express messenger, still, if he, during the time he acted as messenger, also served the defendant as baggageman on such trains, and if he did so with the knowledge, consent, and approval of the defendant, then the defendant owed to him the duty to use ordinary care to avoid injuring him. And the jury was instructed to find for the plaintiff if he was so acting as baggageman, and was injured as a result of the negligence of the defendant. These charges are objected to on the ground that the plaintiff's pleadings did not raise such issue. The petition contained the following averment: "That heretofore, to wit, on November 12, 1900, and for a long time prior thereto, plaintiff was an employé of the American Express Company and of the defendant, the Missouri, Kansas & Texas Railway Company of Texas, and of each of them, jointly and severally, or was employed by said express company, and was required to handle express and baggage transported on said railway company's (defendant's) passenger trains; that it was his duty, in the course of his employment, with the knowledge, consent, and procurement of defendant, to travel on the passenger train of the defendant company between the cities of Sherman and Denison, in said Grayson county, Texas, to carry, control, manage, receive, and discharge freight, baggage and parcels transported by said American Express Company and by the defendant, the Missouri, Kansas & Texas Railway Company of Texas, as a carrier of passengers between said two cities of Sherman and Denison, and over the line of railway and in the cars of said defendant company, for said American Express Company and said defendant railway company, and both and each of them, jointly and severally, as aforesaid." We think the plea fairly raised the issue submitted in the charge. It is distinctly alleged that the plaintiff was acting as baggageman of the defendant, and was not working solely in the capacity of messenger of the express company. The plea was sufficient to notify the defendant that the plaintiff would attempt to prove, and would rely upon, his service as baggageman of the defendant as a basis for a recovery. The plea was good on general demurrer, and we are not called upon to consider whether the allegations were sufficient, had the same been questioned by special exception.

The court instructed the jury that the evidence was not sufficient to warrant the conclusion that there was such express contractual relation between the plaintiff and the defendant as to constitute the relation of master and servant; and appellant contends that, such being the case, a peremptory...