Chicago, R. I. & G. Ry. Co. v. Howell, 166 S.W. 81

Chicago, R. I. & G. Ry. Co. v. Howell

166 S.W. 81 | Tex. App. | 1914

The first assignment predicates error upon the refusal to give a requested peremptory instruction to the jury to return a verdict for appellant. As the record here does not contain or show any requested peremptory instruction, we cannot assume that one was presented and refused by the court, and the assignment must be overruled.

The second and fourth assignments, here considered together, predicate error in allowing the appellee to testify with reference to negotiations and terms of agreement between himself and the agent of appellant concerning the purchase of the two tickets, because the tickets furnished appellee were in writing and constituted written contracts, and such testimony had the effect to vary and contradict the written terms. The petition of appellee alleged that, through mistake, fraud, and negligence on the part of the ticket agent of the appellant, occurring without the knowledge or consent of appellee, there was failure by the agent to incorporate into the tickets the true and real agreement fixing the return date limit as October 31st. To support the allegations supplementary evidence is competent to show what was the real contract indicated by the tickets. Railway Co. v. Kinnebrew, 7 Tex. Civ. App. 549,27 S.W. 631; Railway Co. v. Halbrook, 12 Tex. Civ. App. 475, 33 S.W. 1028; Railway Co. v. Wynn, 44 Tex. Civ. App. 29, 97 S.W. 506. The assignments are overruled.

The third assignment predicates error in submitting to the jury the issue as to whether the agreement between appellant's ticket agent and the appellee was that the return date limit extend to October 31st. This point is based on the contention that parol evidence was inadmissible to modify or change the stipulation of the return limit of September 15th expressed in the face of the ticket. Under the pleading and the evidence there was an issue for the jury, and the assignment is overruled. When the ticket purports to be a contract ticket offered under the consideration of reduced rates, it is not doubted that the passenger would be bound by its lawful stipulations. Railway Co. v. Lee, 104 Tex. 82,133 S.W. 868. In that case the question was not what was the true contract within the authority of the agent to make between the company and Lee, as is here, but whether the stipulation in the ticket offered of: "(2) It will not be accepted for passage unless this contract is signed in ink by the purchaser and also by the agent for the issuing company" — could be varied or waived by an issuing agent having no authority to do so. The question presented by the facts in the instant case is entirely dissimilar. Here the railway company had authorized the ticket agent to place on sale two kinds of tickets — one to have and contain a date limit for return of September 15th, and the other of October 31st. Having established the rates and time limit within which the tickets should be used, and offering such character of contract tickets to the public for choice, the company could not lawfully discriminate against appellee by refusing to sell him a ticket under either contract according to his choosing of return dates. And the ticket agent in the proper performance of his duties for the company was clothed with the authority to agree on the part of the company with appellee in respect to the issuance of a ticket providing the particular time limit within which the ticket should be used. And if appellee made selection of the time limit of October 31st, as authorized by the company, it was incumbent upon the ticket agent to issue the ticket *83 providing such time limit. Having shown by the evidence on his part a breach of the real contract between the appellant and himself occurring through the fault of the appellant's agent, appellee was entitled to have the issue of what was the real contract submitted to the jury. This exhausts the extent of the assignment.

While the matter of excessive damages is not made the basis of assignment, yet we believe it is a matter of fundamental error here. The fares paid back home amounted to $104. To entitle appellee to an October 31st limit he was owing and should pay $162.50, which was $17.50 more than the proof shows he paid. This $17.50 should be deducted from the $104, making appellant owing $86.50. A carrier is not authorized to sell for less than the established rate to all, and the passenger is required to pay the same fare paid by all. It is not lawful to contract otherwise. The judgment is therefore here reformed so as to allow appellee a judgment for $86.50, with interest, and as so reformed will be affirmed; but appellant, by reason of the error, should recover the cost of this appeal, and it is so directed.