Houston & Texas Central R. R. Co. v. Ford

53 Tex. 364 | Tex. | 1880

Bonner, Associate Justice.

The assignment of errors raises, among other questions, the following: That the court erred in rendering judgment against the defendant company on its plea to the jurisdiction; that upon the law and the evidence the defendant was entitled to judgment upon the merits, and that the verdict was excessive.

1. It is objected that though the trespass was committed in the county of Harris, in which the defendant had its domicile, the suit was brought in the county of Travis, in which it had simply an agency.

Section 1, acts 14th Leg., 31, approved March 21, 1874, provides: “That hereafter any public or private corporation, including railroad companies, * * * may be sued in any court in this state having jurisdiction of the subject matter, in any county where the cause of action or a part thereof accrued, or in any county where such corporation has an agency, or representative, or in the county in which the principal office of such corporation is situated.” By section 1 of a subsequent act, same session of the legislature (14th Leg., 107), approved April 17, 1874, it is provided:

“That any public or private corporation, * * * or any association or joint stock company, may be sued in any court having jurisdiction of the amount in controversy, in any county in this state, in which the cause of action, or a part thereof, arose; * * * provided, that any suit against a fire or marine insurance company or association may be commenced. in any county where the property or any part of the same insured may be situated; and in case of any suit against any life or accident insurance company or association, suit may be commenced in any county where the persons insured, or any of them, may reside at the date of the suit.”

Neither of these statutes contain a repealing clause.

It is contended by appellant, that as these two acts embrace the same subject matter the former is repealed by implication by the latter, and as this contains no provision to fix the venue simply by reason of agency in a particular county, the fact of such agency in Travis county did not give the district court of that county jurisdiction.

As said in the recent case of Railway Co. v. Willie, ante, p. 325, we are not advised why the legislature at the same session passed two separate acts so similar in their provisions.

It would seem, from the two sections above quoted, that the first act was intended to extend the right to institute suits, more particularly against railroad companies, in other courts than that of the county of the domicile of the company; and that the second was intended to extend like remedy to any association, joint stock and insurance company.

As they were passed at the same session of the legislature, a more liberal rule of construction should be allowed against the repeal by implication of the first by the passage of the second, and we are of opinion that there is not such irreconcilable repugnancy between them as to authorize us to say that it was thus repealed. Neill v, Keese, 5 Tex., 23; Cain v. State, 20 Tex., 355.

We do not say that a ease might not arise which would not come within the intention of the legislature, as where suit should be brought in some county so disconnected with the principal business of the company, under such circumstances as would show that the law which was intended for the protection of plaintiffs had been designedly used to the injury of defendants.

2. The ticket presented by the plaintiff to the conductor was detached from the stub, and had upon it the words which the plaintiff admits that he had seen —“ not good if detached.”

As thus presented, by its express terms it was not sufficient to entitle the plaintiff to demand that he should be carried by the company, and the conductor was justified in rejecting it.

The liability of the company then, if any, must rest upon the improper issuance and sale of the ticket.

The testimony shows that it was sold to plaintiff by Jones, who had no connection as agent or otherwise with the defendant company, and which consequently was not bound by his act. That it was issued by Andrews, who was the general ticket agent of the Galveston, Houston & Henderson Railroad, a different company from the defendant. That he was not the agent of the defendant company, and had no authority whatever to issue tickets over its road, such as that presented by plaintiff; his only authority for this purpose being derived from a custom among railroad companies to issue tickets of a certain prescribed form.

At most, then, he occupied toward the defendant company but the relation of a special agent, with certain prescribed duties, and not having been held out by the defendant as its agent, the plaintiff dealt at his peril with him.

Whatever may have been the individual liability of Jones or Andrews, or of the company represented by him, for the wrongful act of the issuance and sale of an improper ticket, the defendant, under the circumstances as disclosed by the evidence, was not liable in damages. Story on Agency, § 126.

3. Even had the defendant been liable, we feel constrained to say that under the evidence the verdict seems excessive. His recovery was for actual damages only. He was carried but a few miles from Houston, and was detained but a few hours, and no special damage from inconvenience, disappointment or loss of time was proven. His slight sickness is not shown to have been occasioned by the delay, as he left Galveston on account of his health, and he was politely treated by the conductor.

Under these circumstances, it would seem that a verdict for $750 was excessive.

Judgment reversed and cause remanded.

Reversed and remanded.

[Opinion delivered May 21, 1880.]