Pullman Company v. Cox

• Decision Date: 09 June 1909
• Citation: 120 S.W. 1058
• Court: Texas Court of Appeals
• Parties: PULLMAN COMPANY et al. v. COX.<SMALL><SUP>†</SUP></SMALL>

120 S.W. 1058

PULLMAN COMPANY et al. v. COX.^†

Court of Civil Appeals of Texas.

June 9, 1909.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by John R. Cox, Jr., against the Pullman Company and another. From a judgment against the Pullman Company, it appeals. Affirmed.

Cochran & Penn and Ireland Graves, for appellant. Fiset & McClendon, for appellee.

FISHER, C. J.

This is a suit by appellee, Cox, against the Pullman Company and the Gulf, Colorado & Santa Fé Railway Company to recover from the appellant, the Pullman Company, damages on account of an alleged breach of contract entered into between him and the Pullman Company, whereby it was agreed that appellee's wife and child should be transported in a Pullman car from Austin, Tex., to Paris, Tex. The breach is charged to be the expulsion of plaintiff's wife and child from the car by the Pullman people when it reached Dallas. The cause of action alleged against the Gulf, Colorado & Santa Fé Railway Company is substantially to the effect that they breached the contract of transportation agreed upon, and that they caused and required the plaintiff's wife to be transported from Dallas, Tex., to Paris, Tex., in a smoking car, and by reason of which she suffered inconvenience, annoyance, etc. The appellant in the court below, by way of exception, raised the question of a misjoinder of causes of action and parties defendant, and further pleaded a general denial. The exception referred to was overruled by the court, to which action defendant reserved a bill of exceptions. On trial in the court below, judgment was rendered in favor of appellee, Cox, against the appellant, the Pullman Company, for the sum of $200; and judgment in favor of the Gulf, Colorado & Santa Fé Railway Company to the effect that the appellee, Cox, take nothing by his suit against that road, and that there be adjudged against Cox all the costs incurred by reason of the Gulf, Colorado & Santa Fé Railway Company being made party.

The four last assignments of error contained in appellant's brief assert that the evidence is insufficient to support the verdict and judgment of the trial court. Without intimating how we would have determined the question of liability or nonliability of the appellant on the facts, if the question had been before us originally, all that we are required to do is to ascertain whether the facts directly, or the implications or deductions arising therefrom, authorized the jury to reach the conclusion they did.

The plaintiff testified that he entered into a contract with appellant's agent at Austin, for the transportation of his wife on the through Pullman sleeping car to Paris, Tex., and paid the full price demanded and required for such service, which he testifies to be $2.50. At the time the contract of transportation was entered into, he explained fully to the agent his wife's condition, and that he desired to arrange so that she would not have to leave the car, and that she would be transported through to her destination without change on the sleeping car, that the agent assured him that she would not have to change from that car, and that she would go through on the same from Austin to Paris. When the train to which this car was attached reached Dallas, she was required by the Pullman people to leave the same. Then she was directed by those in charge of the Santa Fé train to enter the smoking car, as alleged. She at the time was traveling alone with the infant child, was inexperienced in travel, and her evidence is sufficient to show that she experienced fright and alarm by reason of the unexpected situation thus forced upon her by the Pullman people, and that she sustained mental distress on account of their conduct in breaching the contract and refusing and denying her the privilege of transportation in the sleeper to her destination. The appellee testified that when he purchased the sleeping car ticket he was not certain in his recollection as to whether he read it or not, but it is clear from his testimony that he understood it to be the kind of ticket called for by the contract, and he supposed it provided for transportation from Austin, Tex., to Paris, Tex. His wife, in the course of transportation between Austin and Dallas, was required to, and did, turn over the ticket to the Pullman official in charge of the car, which ticket was never redelivered to her, and it has never been returned to the possession of the appellee, and the testimony justifies the inference that the ticket at the time of trial was in possession of, or could possibly be produced by, the Pullman Company. On the other hand, the agent of appellant who sold the ticket to appellee testified that he had no distinct recollection of what was contained in the face of the sleeping car ticket, but he produced memoranda which he testified was made, and which his duties required him to make, showing that a certain sleeping car ticket, on the day on which the contract of transportation was entered into with appellee, was sold, and that it called for transportation from Austin, Tex., to Dallas, Tex., the price of which the entry shows to be $2. The contract in question was entered into at what is known as the International Railway ticket office at the depot; and the agent who sold the ticket, as well as the agent of the uptown office, testified, in effect, that there were no sleeping car tickets on sale at the depot office providing for transportation from Austin to Paris, but that there were such tickets for sale at the uptown office. This is not a detail of all the evidence, but is a recitation of its substantial features so far as relates to the contract.

Under the doctrine of Gulf, Colorado & Santa Fé Railway Co. v. Halbrook, 12 Tex. Civ. App. 478, 481, 33 S. W. 1028, and the cases therein cited, the appellee, as a cause of action and a basis for recovery, could have well relied upon the contract as actually entered into, although the ticket upon its face, by mistake or otherwise, failed to correctly embody its terms; but the averments of his petition are substantially to the effect that the ticket upon its face called for transportation from Austin to Paris, and the court, in submitting this...