Smith v. Pullman Company

• Decision Date: 31 May 1909
• Citation: 119 S.W. 1072,138 Mo.App. 238
• Parties: AMELIA SMITH, Respondent, v. PULLMAN COMPANY, Appellant
• Court: Kansas Court of Appeals

119 S.W. 1072

138 Mo.App. 238

AMELIA SMITH, Respondent, v. PULLMAN COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 31, 1909

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.

REVERSED.

Judgment reversed.

Lathrop Morrow, Fox & Moore for appellant.

1. The plaintiff seeks to recover here upon the theory that she actually entered the car in which she had obtained a reservation and was wrongfully refused permission to occupy it; the evidence for plaintiff and defendant shows without contradiction that the plaintiff did not enter the car on which her reservation had been made nor did she apply for it to the conductor who had it in charge; this being so she cannot recover in this action and the judgment should be reversed. Yall v. Gillham, 187 Mo. 408, 409, and cases there cited; Railroad v. Raine, 113 S.W. 495 2. Instruction number 2 for plaintiff assumes there was evidence that the plaintiff's reservation was from Cameron; there was no evidence of that fact, hence the instruction is error. Stephen v. Metzger, 95 Mo.App 626; Holden v. Railroad, 177 Mo. 456. This instruction is also bad because it declares that plaintiff could recover for a breach of contract without also finding that she actually entered the car containing her reservation and was wrongfully ejected therefrom as alleged in her petition. Yall v. Gillham, 187 Mo. 408-9, and cases cited.

John A. Cross for respondent.

The agency of a railway ticket agent in contracting on behalf of a sleeping car company to reserve a section or berth in one of its cars may be established by the prior acts, and circumstances attending the same, showing that the company recognized similar contracts made under like circumstances. Nelson v. Car Co., 54 S.W. 624. The evidence of Conklin and Jones, taken in connection with the intimate business relations between appellant and the Rock Island Railway Company, over whose line their cars were run, was ample basis for the introduction of the telegrams in evidence. Nelson v. Car Co., supra; Booth v. Car Co., 28 S.W. 719; Wilson v. Reddick, 131 Mo.App. 456.

OPINION

JOHNSON, J.

This action is for damages which plaintiff alleges she sustained in consequence of the refusal of defendant to permit her to occupy space reserved for her use in a sleeping car. The suit was brought against the Pullman Company and the Chicago, Rock Island & Pacific Railway Company, but during the trial, the railway company was dismissed. Verdict and judgment were for plaintiff against the remaining defendant, the Pullman Company, in the sum of $ 500, and the cause is here on the appeal of defendant from that judgment.

Facts disclosed by the evidence introduced by plaintiff thus may be stated: Plaintiff, her husband and son, desirous of making a trip from Cameron, where they lived, to Bisbee, Ariz., and return, applied through the husband to the agent of the Chicago, Rock Island & Pacific Railway Company at Cameron for tickets for the contemplated journey and informed him they wished to secure a whole section in the "tourist" sleeping car to El Paso, Texas. Further, the agent was told they would leave Cameron November 6, 1906, on a passenger train scheduled to depart at about nine o'clock p. m. The train was designated by the railway company as No. 29, and the day of departure selected by plaintiff was known in railroad circles as "Homeseekers' Day." Travel was unusually heavy on such days. The agent had no authority to sell tickets for the Pullman Company--Cameron being a way station--nor had he authority to reserve space in sleeping cars for the use of prospective passengers. Following the usual custom in such cases, he sent to the city passenger agent of the railway company at Kansas City the following telegram, dated November 5th: "Please reserve one section in tourist train No. 29 Nov. sixth for W. B. Smith please give number." At 4:50 p. m. of the same day, the agent at Kansas City answered by wire: "Section two extra tourist car 29 Nov. sixth for Smith." On receipt of this message, the agent telephoned plaintiff's husband that the section was reserved and received the reply, "All right, you can figure on me tomorrow night." The next day (Nov. 6th) plaintiff's family appeared at the station in time to depart on train No. 29. Her husband bought and paid for the railroad tickets and offered to pay for the section in the sleeping car, but the agent handed him the telegram from the Kansas City agent and told him to pay the sleeping car fare to the Pullman conductor in charge of the car. The agent said (so the husband testified): "Take the sleeper right out of here. Get on this nine o'clock train and go right back into the sleeper and take the first seat and stay there until the conductor comes through and he will show you your berth." The family boarded the train when it arrived, went into the tourist sleeping car, exhibited the telegram and railroad tickets to the conductor of that car and were told that section No. 2 was not vacant and that the only berths not taken were two upper berths at opposite ends of the car. The conductor thought an extra tourist sleeping car would be attached to the train at Kansas City and that a whole section could be obtained in that car. He would not permit the family to ride in the sleeping car to Kansas City without the payment of seat fare and they went into the chair car. The train arrived at Kansas City at about eleven o'clock and remained there ten minutes. No extra sleeping car was attached. Shortly after leaving Kansas City, defendant's conductor came into the chair car and informed plaintiff that he could not give them a section in his car. Plaintiff's husband had offered to pay the fare to the conductor for the section from Cameron to El Paso, but the offer was declined. The family remained in the chair car which was filled with passengers. The journey to El Paso consumed two days and on the second day, plaintiff was seized with physical illness so severe that she had to be helped from the car at El Paso.

Defendant denies that the agents of the Rock Island Railway Company had authority to make reservations of space in its sleeping cars or to represent it in any capacity. It alleges in the answer "that on the 5th day of November, 1906, there was temporarily reserved for one Smith by the Chicago, Rock Island & Pacific Railway Company, upon an extra tourist car engaged for the run from Kansas City to El Paso, leaving Kansas City on November 6th, and known as said Rock Island Railway's train No. 29, to-wit, the second section of said train, certain space numbered and known as section two, but that neither said Smith or anyone for him claimed or paid for said space and that said space remained vacant from Kansas City, Missouri, to El Paso, Texas; that the reservation aforesaid was made as an accommodation merely and without compensation and did not constitute a contract between the plaintiff and this defendant."

It appears from the evidence of defendant that train No. 29 ran from Chicago to El Paso and that on November 6th it consisted of but one train from Chicago to Kansas City, but from Kansas City on, it was run in two sections. The train in which plaintiff rode was the first section and left Kansas City ten minutes ahead of the second section which was made up at Kansas City. The latter train carried a tourist sleeping car which defendant claims was the "extra tourist car," in which space was reserved for plaintiff and to which reference was made in the telegram sent by the Kansas City agent of the Rock Island Railway Company to the agent at Cameron. Defendant offered in evidence its "Ticket Agent's Office Diagram" of the car which shows that section two was reserved for "Smith" from Cameron. Had plaintiff known that space was reserved for her in this car, she could have left the first section of the train at Kansas City and used her...