Texas City Terminal Co. v. Thomas

• Decision Date: 06 May 1915
• Docket Number: (No. 6832.)
• Citation: 178 S.W. 707
• Parties: TEXAS CITY TERMINAL CO. et al. v. THOMAS.
• Court: Texas Court of Appeals

178 S.W. 707

TEXAS CITY TERMINAL CO. et al. v. THOMAS.

(No. 6832.)

Court of Civil Appeals of Texas. Galveston.

May 6, 1915.

Appeal from Galveston County Court; George E. Mann, Judge.

Action by Mathilda Thomas against the Texas City Terminal Company and the Galveston-Houston Electric Railway Company. From a judgment for plaintiff, defendants appeal. Reversed and rendered as to the Electric Company, and affirmed as to the Terminal Company.

W. T. Armstrong and Chas. P. Macgill, both of Galveston, and Wilson, Dabney & King and Geo. A. Hill, Jr., both of Houston, for appellants. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.

LANE, J.

This suit was originally instituted by appellee on the 28th day of February, 1914, against appellants, to recover the value of a trunk and its contents. In her original petition appellee alleges that she is a married woman, but is living in a state of separation from her husband, who refused to join her in the suit; that appellants are common carriers of passengers and baggage for profit, and operate a line of railroad and motor cars from Texas City to Texas City Junction, and from said junction to Galveston; that on or about January 21, 1914, she purchased a ticket from the defendant's agent at Texas City, which entitled her to passage from Texas City to Texas City Junction over the railroad of the Texas City Terminal Company, and from thence over the line of the Galveston-Houston Electric Railway Company; that said ticket also entitled her to the right to have her trunk checked and transported by defendants from Texas City to Galveston; that the agent of defendants at Texas City told her that he would have her trunk safely transported by defendants and delivered to her at Galveston; that he wrote her name and destination on a card and attached the same to her trunk and told her that her trunk would be delivered to her on the following day; that her trunk was lost, to her damage in the sum of $302.

On the 13th day of March, 1914, the Texas City Terminal Company, hereinafter called terminal company, filed its answer and pleaded that it operated its line of railroad from Texas City to Texas City Junction; that it operates no railway between Texas City Junction and Galveston; that it sold no ticket to plaintiff for through passage to Galveston; that, if plaintiff's trunk was delivered to it for transportation, it was transported by it to the junction, and there delivered to the Galveston-Houston Electric Company, and plaintiff's trunk was not lost by it.

On March 17, 1914, the Galveston-Houston Electric Railway Company, hereinafter called electric company, filed its answer and pleaded in abatement: First. That plaintiff's petition is insufficient in law, because it appears therefrom that plaintiff is a married woman, having a husband living, who has not abandoned her, and who is a necessary party to this suit, and therefore this suit should be dismissed. Second. That it is improperly joined as defendant with the defendant terminal company. That there is no joint contract or understanding as between said defendants as plaintiff alleged, but that it appears from plaintiff's petition that each defendant entered into a separate and independent contract, if any, with the plaintiff, wherefore it prays that the suit be dismissed because of improper joinder of parties. Specially pleading, it denies generally the allegations of plaintiff's petition, and, further answering, says that it operates a line of motor cars between Texas City Junction and Galveston. That it has no line of railway between Texas City Junction and Texas City. That it has never at any time entered into a contract with the terminal company, or any other company, for the carriage of passengers or baggage between the last-named points. That it never at any time received plaintiff's trunk for transportation.

On April 8, 1914, the day the case was tried, plaintiff filed her first supplemental petition, alleging that her husband had abandoned her long prior to the institution of this suit, and that they have lived in a state of separation ever since her husband abandoned her, and that her husband refuses to join her in the suit, and that the property sued for is her separate personal property; that the two defendants are connecting carriers, and that the ticket purchased by her read for continuous passage, and entitled her to a continuous passage, with her baggage to Texas City Junction and from there over the line of the electric company to Galveston; that both companies were obligated to transport her and her trunk to Galveston on said ticket; that the agent who sold her the ticket was the joint agent of both companies; that since she filed her original petition, to wit, on March 25, 1914, two agents of the defendant companies delivered her trunk to her in Galveston; that said agents fraudulently induced her to sign a release reciting that her trunk was received in as good condition as when delivered to the terminal company at Texas City, and releasing defendants from any liability whatever; that said agents told her the paper signed by her was only a receipt for her trunk; that they did not read said paper to her nor permit her to read the same; that when she opened her trunk she found the contents thereof badly damaged and almost worthless; that her trunk was also badly damaged — to her total damage in the sum of $209.

Both defendants claimed surprise by the new matters pleaded by plaintiff just before trial, insisting that an entirely new cause of action had been set up by plaintiff, and filed a motion for a continuance that they might have time to meet and refute said new cause of action so made by plaintiff's supplemental petition. Whereupon the court refused said motion for continuance and gave defendants one hour to prepare for trial. Before the trial began, both defendants filed supplemental answers, alleging that on the 25th of March, 1914, plaintiff, upon receipt of her trunk and its contents, executed and delivered to each of defendants a full release, as follows:

"I. Mrs. Mathilda Thomas, have this day received one trunk and its contents belonging to me in good condition as checked out of Texas City by the Texas City Terminal Company to be transported to Galveston by the Galveston-Houston Electric Company, and I hereby release said Texas City Company, and Galveston-Houston Company, of all and every liability in the matter.

"Galveston, Texas March 25, 1914.

                                     "Mrs. J. A. Thomas
                

"Witnesses:

                   "Chas. P. McGill
                   "J. B. Farley."
                

They also deny generally and specifically the matters alleged by the various paragraphs of plaintiff's supplemental petition, and deny that plaintiff was induced by misrepresentations to sign said receipt, but aver that, on the contrary, said release was read to her at the time she signed the same, and that she signed same with full knowledge and understanding of its contents and meaning.

The defendant electric company again repeated its allegation that the trunk of plaintiff never was in its possession at any time, and therefore it could not be held liable for any damage thereto, if any.

The case was tried before the court on the above pleadings, without a jury, and judgment was rendered for plaintiff for $209, from which judgment both defendants have appealed.

Believing, as we do, that a proper...