Pullman Co. v. Meyer

• Decision Date: 25 November 1915
• Docket Number: 2 Div. 609
• Citation: 195 Ala. 397,70 So. 763
• Parties: PULLMAN CO. v. MEYER.
• Court: Alabama Supreme Court

70 So. 763

195 Ala. 397

PULLMAN CO. v. MEYER.

2 Div. 609

Supreme Court of Alabama

November 25, 1915

Rehearing Denied Jan. 20, 1916

Appeal from City Court of Selma; J.W. Mabry, Judge.

Action by Albert Meyer against the Pullman Company, for damages for breach of contract to furnish him and wife drawing-room transportation from Anniston to the East. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

The facts sufficiently appear from the opinion. The following charges were refused to defendant:

(3) You are not authorized to assess any damages for alleged mental suffering or anguish on the part of plaintiff.

(8) If you believe the evidence, you are not authorized to find that defendant, the Pullman Company, through its agents or agent, entered into a contract with plaintiff in Selma, by which defendant agreed to sell plaintiff and plaintiff agreed to purchase from defendant, drawing-room accommodations in the car operated over the Southern Railway between Birmingham and Baltimore.

(12) If you are reasonably satisfied from the evidence that the Southern Railway Company's agent, who sold plaintiff his railroad ticket, and with whom he had the alleged conversations in Selma relative to Pullman accommodations, had no authority from defendant to sell, or contract for the sale of, accommodations between Anniston and Birmingham, and was only authorized to make requests for reservation as a courtesy or convenience to intending railway passengers, your verdict must be for the defendant.

(16) If you are reasonably satisfied from the evidence that the agent with whom plaintiff had his dealings and conversations in Selma relative to the drawing room in the Baltimore car did not understand that he was selling, or contracting to sell, plaintiff the right to occupy a drawing room between Anniston and Baltimore, but understood that he was merely requesting that the drawing room be reserved to plaintiff between Anniston and Baltimore, your verdict must be for defendant.

(19) I charge you that, unless you are reasonably satisfied t from the evidence that the agent with whom plaintiff conferred in Selma was put on notice of the probable consequences to plaintiff's wife should the accommodations between Anniston and Baltimore be not reserved, and, unless you are reasonably satisfied from the facts relative to such probable consequences, or notice thereof was communicated by the Southern Railway agent in Selma to the persons, if any, who had authority to make the reservation in Birmingham, you could not consider the alleged illness of plaintiff's wife, or any expense incident thereto, as the basis for assessing damages in this case.

The following are the questions propounded to Dr. King:

"From your knowledge of her condition, at that time would you, or not, say that, if, upon reaching Anniston where certain accommodations were to be accorded her on a sleeping car, she found they were refused to her, and that that was unexpected to her, and by reason of that she had to make changes at different points, would or would not that result in a relapse to her former condition?" Also: "Was she in such a condition that disappointment in a matter of that importance to her would probably have that effect?" Also: "Could a person in that condition have a relapse from disappointment in getting certain accommodations on a train which she considered necessary to her well-being?" Also: "Would, or not, an unexpected change, or unexpectedly having to take a car that did not go through instead of a car that did, be more likely to cause a relapse than an expected change?"

Questions propounded to Meyer were relative to the conversations had with the agent of the Southern Railway at Selma about the reservation, and those had with the Pullman Car conductor on reaching Anniston, and are sufficiently indicated in this opinion. The verdict and judgment was for $1,000.

Forney Johnston and W.R.C. Cocke, both of Birmingham, and Pettus, Fuller & Lapsley, of Selma, for appellant.

Craig & Craig, of Selma, for appellee.

McCLELLAN J.

In an action by a third party against an alleged principal the burden of proof--if the fact of the relation of principal and agent or the extent of the authority conferred is disputed--is on the affirmer thereof.

Where the fact of such disputed relation or the extent of authority conferred rests in parol, and there are in evidence other facts and circumstances tending to show the relation or the extent of authority conferred, the acts and declarations of the asserted agent are relevant to the issues tendered and are admissible. Robinson v. Greene, 148 Ala. 434, 43 So. 797; Miller-Brent Lumber Co. v. Stewart, 166 Ala. 657, 662, 51 So. 943, 21 Ann.Cas. 1149; B.M.R.R. Co. v. T.C., I. & R. Co., 127 Ala. 137, 145, 28 So. 679. Generally the solution of such inquiries must be left to the jury. Bank of Montgomery v. Plannett, 37 Ala. 222, 227; 31 Cyc. pp. 1674-1677.

Even though an agreement is, when made, unilateral, if the party in whose favor the promise is made accepts its performance, or does--

"any act in recognition of its implied or intended, though unexpressed, consideration, this supplies the element of mutuality, and gives a right of action." Evans v. C.S. & M. Ry. Co., 78 Ala. 341, 345, 346; Sheffield Fur. Co. v. Hull Coal Co., 101 Ala. 446, 477, 14 So. 672; McIntyre Lumber Co. v. Jackson Lumber Co., 165 Ala. 268, 51 So. 767, 138 Am.St.Rep. 66; Pratt Con. Coal Co. v. Short, 68 So. 63, 67.

"That which creates some benefit to the party promising, or causing some trouble, injury, inconvenience, prejudice, or detriment to the promisee, is a consideration which will uphold a promise." Rutledge v. Townsend, 38 Ala. 706, 716; Hixon v. Hetherington, 57 Ala. 165; Henry v. Murphy, 54 Ala. 246, 252; Mott v. Jackson, 172 Ala. 448, 55 So. 528; 3 Enc.Dig.Ala.Rep. p. 301.

While an hypothetical question, propounded to an expert, is objectionable if it contains elements of fact not shown in the evidence, yet such a question, propounded to an expert witness, is not objectionable because it omits to hypothesize every fact in evidence. An examiner of an expert witness may lay as the basis for the opinion invited only those facts in evidence which seem to him to conform to the theory he would establish. Of course, such questions must also incorporate sufficient of the facts in evidence to fairly justify the formulation of an opinion on a material issue in the case. The frame and substance of hypothetical questions to expert witnesses are matters largely committed to the sound discretion of the trial court. B.R. & E. v. Butler, 135 Ala. 388, 395, 33 So. 33; Morrisette v. Wood, 123 Ala. 384, 26 So. 307, 82 Am.St.Rep. 127; Parrish's Case, 139 Ala. 16, 43, 36 So. 1012; Long Distance Co. v. Schmidt, 157 Ala. 391, 47 So. 731; B.R.L. & P. Co. v. Saxon, 179 Ala. 136, 59 So. 591; Jones on Ev. §§ 370, 371; 17 Cyc. pp. 244, 250.

The plaintiff's (appellee's) wife was under treatment at a sanitorium in Selma, in this state.

Her malady was neurasthenia. She had reached a stage in her restoration where the physician in charge thought it desirable that she be taken to a coast resort, and Atlantic City, N.J., was selected. The physician advised that the journey be made under circumstances of the utmost comfort and seclusion for her; with the view to averting her relapses into the state of nervous debility from which she had been, in a measure, relieved. It was thought to be necessary to her comfort and to be a proper precaution that inclosed apartments in sleeping cars should be secured from Selma, Ala., to Baltimore, Md., the route decided on being the Southern Railway from Selma to Washington, via Anniston, Ala., and Atlanta, Ga.

There was evidence to these effects: That plaintiff applied to the up-town ticket office of the Southern Railway in Selma for a reservation of the drawing room in the through sleeping car operated over this line from Birmingham to Baltimore; that the plaintiff advised an agent in the office of the special circumstances and purposes indicated, which included the need of a drawing room from Selma to Anniston, at which latter point the desired reservation in the through sleeping car was to be taken; that the time and date of departure from Selma--to make the journey with due regard to Mrs Meyer's condition and without unnecessary delays--was to depend upon the prearranged availability of the accommodations on the through sleeping car to the East, from Anniston; that an agent serving in the office advised the plaintiff that the reservation in the through car could be made in the Birmingham office of the railway company where the space in the through sleeper was handled; that the agent in the Selma office communicated by telephone with the Birmingham office and made a reservation, to be taken at Anniston, of the desired apartment in the through sleeper for a definite date; that plaintiff agreed with the agent in the Selma office to accept and pay for the reservation at Anniston on the date for which the reservation in the through car was made; that the plaintiff bought and paid for the drawing room from Selma to Anniston, and Atlanta, the route contemplated, the agent in the Selma office telling him to pay the Pullman conductor on the through sleeper, at Anniston, for the drawing room so reserved in the through sleeper; that plaintiff traveled, in the drawing room so purchased, from Selma to Anniston; and that...