Pullman Palace-Car Co. v. Booth

• Decision Date: 19 December 1894
• Citation: 28 S.W. 719
• Parties: PULLMAN PALACE-CAR CO v. BOOTH et al.
• Court: Texas Court of Appeals

Page 719

28 S.W. 719

PULLMAN PALACE-CAR CO v.BOOTH et al.

Court of Civil Appeals of Texas.

December 19, 1894.

Appeal from district court, Travis county; James H. Robertson, Judge.

Action by Mattie G. Booth and her husband against the Pullman Palace-Car Company.Judgment for plaintiffs.Defendant appeals.Affirmed.

Percy Roberts and Walton & Hill, for appellant.West & Cochran, for appellees.

COLLARD, J.

The nature and result of the case are correctly stated by appellant as follows: Appellees, Mattie G. Booth and her husband, William Booth, sued appellant for damages for failure to comply with a contract to furnish said Mattie G. with a certain section of its sleeping car from Ft. Worth to Denver on August 7, 1892, causing her to go, with her nurse and child, into the negro compartment of an ordinary railroad car, and not furnishing any sleeping-car accommodations for her until arrival at Wichita Falls, and then not equal accommodations, whereby she suffered mental and physical pain, to her damage, $1,550, and causing the husband to go to her at end of journey at expense of $400 and cost of telegram, for all which they asked judgment.Defendant demurred generally, also specially, and made general denial; also specially denied agency of the party with whom the contract for the section was claimed to have been made.The demurrers were overruled, except as to the recovery of the $400, and, on trial by jury, plaintiffs recovered verdict and judgment on April 28, 1893, for $1,000.Motion for new trial was overruled, appeal taken and perfected, statement of facts filed, and errors assigned.

Appellant's first and second assignments of errors are: "(1)The court erred in overruling defendant's general demurrer.(2)The court erred in overruling defendant's first special exception (paragraph 2 of its original answer) to plaintiffs' petition, and in not striking out the allegations as to plaintiff's going into and sitting and riding in the negro compartment."

Plaintiffs' petition declared as follows: (a) That defendant was a common carrier of passengers for hire by means of railroad cars from Ft. Worth to Denver.(b) That plaintiff Mrs. Booth, desiring to travel from Austin, Tex., to Denver, Colo., had a telegram sent to D. B. Keeler(August 2, 1892), the local agent of defendant at Ft. Worth, Tex., to reserve for her a section in defendant's car running from Ft. Worth to Denver, on the morning of August 7, 1892, and received from said Keeler a telegram saying, "All of section 2 reserved for Mrs. Booth," signed "D. B. Keeler"; "whereby defendant company contracted and obligated itself to carry plaintiff safely and securely from Ft. Worth to Denver, in section 2 of its car running from Ft. Worth to Denver on the morning of the 7th of August, 1892."(c) That, acting on said contract, Mrs. Booth, in company with her infant child and nurse, left Austin for Ft. Worth, her husband "having purchased a first-class ticket for Mrs. Booth and nurse from Austin to Denver, said tickets being round-trip excursion tickets, limited in time as to journey and train, and reached Ft. Worth on Sunday morning, August 7, 1892, and at once repaired to agent of defendant at Union Depot at Ft. Worth, to secure and pay for said section 2."(d) That the agent in charge stated to her "that she could not have the same, and that there was some mistake, as the section 2 had already been sold to other parties, although plaintiff says she saw from the cardboard of said car in the hands of said agent that the same had her name thereon, so reserved for her."(e)"That, notwithstanding this fact, and being anxious to secure her said section on account of her delicate health, and being without an escort, only accompanied by her nurse and baby, she went into the Pullman car bound for Denver, and found the same much crowded."(f)"That, notwithstanding the fact that said section 2 was reserved for plaintiff, and that the name so appeared on the chart or card-board of said car, the conductor of said car ordered her to leave the same, and plaintiff, with her nurse and baby and her baggage, was forced to leave said Pullman car, and the section 2 so reserved for her, and, owing to the crowded condition of the cars of the train, she was unable to obtain a seat for herself and accommodations for her nurse and child, except in that part of the train reserved for negroes, and in which she finally was accommodated, there being several negro passengers in said negro compartment; and plaintiff remained in said negro compartment until she was able to get a seat elsewhere."(g)"And plaintiff alleges that she was never in any manner accommodated until she reached Wichita Falls, at which place another sleeper was attached to said train, and in which she rode to her destination in said car at Manitou Junction, Colorado; but plaintiff alleges that said sleeping car thus attached at Wichita Falls was an old, rickety concern, with the accommodations not so good as those in the car in which she had engaged passage."(h)"Plaintiff says her infant child was only six weeks old, and she was delicate, and traveling to a cooler climate, for the purpose of building up and regaining her strength.That she was alone and unprotected, except by a nurse, carried by her to assist in the care of her infant child."(i)"That because of her delicate health and her infant child, and the fact of traveling without her husband, plaintiff had previously contracted for section 2 in defendant's car, wherein travel would be safe and comfortable, said car being well provided with all the modern conveniences for comfort and pleasure to its occupants."(j)"That, notwithstanding plaintiff's condition, the fact of her being alone, and her purpose in ordering a section in advance in said car, all of which was well known to defendant company, the conductor of said company wrongfully and willfully, and in violation of plaintiff's rights under her contract, ordered her, as aforesaid, to leave said car; and plaintiff, being alone and unprotected, and to prevent being forcibly ejected, obeyed said order."(k)"That by reason thereof plaintiff was subjected to the indignity of riding in a negro coach, unprotected, and without comforts or traveling companions, wherefore she was humiliated, and suffered both mentally and physically."(l)"And as soon as she reached a place of safety, she, because of her suffering, being sick and unnerved, telegraphed to her husband, W. E. Booth, the above facts, and urged him to come to her."(m)"That immediately upon receipt of said telegram said W. E. Booth took the train, and came to plaintiff, at an expense of $400 to plaintiff, which he was compelled to spend as a direct result of defendant company's wrongful treatment of plaintiff."(n)"That in forcibly and wrongfully ejecting plaintiff from said cars, and never in fact giving plaintiff the accommodation contracted for, the defendant company willfully, knowingly, and maliciously violated its agreement to safely and securely carry plaintiff from Ft. Worth, Texas, to Denver, Colorado, in section 2 in said car."(o)"That defendant so acted with intention to subject plaintiff to the indignities, wrongs, and injuries as above recited, or at least with willful and malicious disregard of plaintiff's rights under her contract, which resulted in said indignities, wrongs, and injuries, by reason of which plaintiffs are damaged as hereinafter recited."(p)"That by reason of said wrongful, malicious, and willful action on the part of defendant, plaintiffs were actually damaged in the sum of 60 cents, paid for the telegram sent as aforesaid to Keeler, and his reply."(q)"And by reason of said wrongful, malicious, and willful ejectment of plaintiff from said car, and violation of plaintiff's aforesaid contract by defendant, this plaintiff, because of mental anguish and anxiety and physical pain resulting from exposure to danger and the hardships and uncomfortable surroundings of a negro coach as aforesaid, and because defendant never did give plaintiff the accommodations contracted for, this plaintiff was damaged in the sum of $1,550, for which she sues as actual damages."(r)"And by reason of plaintiffW. E. Booth's having to leave his business in the city of Austin, Texas., and go to the plaintiffMattie G. Booth, they were further damaged $400, for which they sue as exemplary damages."

The special demurrer of defendant is as follows: "(2) And, specially demurring, defendant excepts to so much of said petition as sets up the fact of the plaintiff's sitting down and riding in the part of the railroad company's cars set apart for negroes, because the same does not appear to have been a natural or proximate result of the alleged breach of contract by defendant, but was an act against law; and it does not appear that plaintiffMattie G. Booth had a railroad ticket, or, if she had, that she applied to the conductor of said railroad or its agent for a proper seat; and of this it prays judgment, and that said parts be stricken out."

Without reciting the various propositions of appellant relied on in support of the assignments that the court should have sustained the general and special demurrers, we will dispose of all of them, in presenting our views of the merits of the petition, in the following opinion:

The petition shows that there was a contract between Mrs. Booth and the defendant by which the latter undertook to furnish her accommodations on the sleeping car at Ft. Worth, and this contract was supported by a valid consideration.The demand for the berth on the one hand, and the promise to furnish it on the other, constituted a contract, which obligated her or her husband to pay for the same, and obligated the company to furnish it, and these mutual obligations and promises constituted a valid consideration for the contract.Defendant having contracted to furnish section 2 of the sleeping car for her, it was...