55 S.W. 315 | Tex. | 1900
The questions and statement below are submitted by the Court of Civil Appeals for the Fifth District:
"This suit was instituted against the International Great Northern Railroad Company and the Missouri, Kansas Texas Railway Company of Texas, for the recovery of damages on account of wrongful ejection from the train while a passenger, etc. Upon the trial, the court instructed a verdict for the Missouri, Kansas Texas Railway Company, and submitted the case as to the International Great Northern Railway Company. A verdict was rendered in favor of the former company, as directed by the charge, and against the latter company for $250. The International Great Northern Railway Company has appealed. The facts of the case are undisputed and are in substance these:
"November 4, 1897, the agent of the Missouri, Kansas Texas Railway Company of Texas, at Dallas, sold Mr. Best a round trip coupon ticket over that road and the International Great Northern Railway from Dallas to San Antonio and return. The ticket contained two coupons for each road, one for the going trip and one for return over each road. The coupons showed that the trip was to be made over the Missouri, Kansas Texas Railway from Dallas to Taylor, and over the International Great Northern Railway from Taylor to San Antonio. The ultimate limit of the ticket was fixed by its terms to November 15, 1897. It provided for a continuous trip going, from the date of the ticket, and for a continuous trip returning, from the date when the ticket should be stamped by the agent of the International Great Northern Railway at San Antonio, which was made essential, by its terms, to the validity of the return part of the ticket. It further stipulated that no stop-over would be allowed, unless specially provided for, and expressly stated that no agent or employe had power to modify the contract in any particular. This contract was duly signed by Mr. Best. Mr. Best made his trip to San Antonio, and on November 7th had his ticket stamped at San Antonio by the agent of the International Great Northern Railway and took a train to return to Dallas. The conductor of the International Great Northern train, while taking up tickets of passengers, asked Mr. Best if he desired to stop over at Austin, situated on that road between San Antonio and Taylor. Mr. Best informed him that he would like to make the stop-over if it could be arranged so that his ticket would be good, after the stop-over, from Austin to Dallas. The conductor wrote on the International Great *347 Northern coupon "Off at 67 Reed," and told Mr. Best that it was all right and that he could make the stop-over. Mr. Best did stop over at Austin, and next day resumed his journey. He was carried by the International Great Northern Railway to Taylor, his International Great Northern coupon being taken up by the conductor, the remaining part of the ticket bearing no evidence of a stop-over privilege. At Taylor he took the Missouri, Kansas Texas train, the conductor of which refused to honor the ticket because it was manifest that a continuous journey had not been made from San Antonio from the date of the stamping of the ticket at that place. Mr. Best declining to pay his fare from Taylor to Dallas, was ejected from the train at Lorena, and, remaining at that place for another train, paid his fare from that point to Dallas next morning.
"The International Great Northern Railway did not ask any recovery against the Missouri, Kansas Texas Railway in the event the plaintiff recovered against it, and appellee, Best, has not appealed from the judgment. The charge of the court authorized a recovery of damages against the International Great Northern Railway on account of his ejection from the train of the Missouri, Kansas Texas Railway Company, including compensation for mental and physical suffering, if the jury determined that the conductor of the International Great Northern Railway was guilty of negligence in his acts relating to the matter of plaintiff stopping over at Austin, and this negligence was the proximate cause of his ejection from the train of the Missouri, Kansas Texas Railway Company.
"Question 1. Assuming that the conductor of the International Railway caused the passenger to believe that he could stop over at Austin without forfeiting his right to passage upon the ticket from Austin to Dallas, and that this was negligence in the conductor which caused plaintiff to stop over at Austin, resulting in his expulsion from the train of the Missouri, Kansas Texas Railway Company next day on account of forfeiture of the ticket by such stop-over, would the International Great Northern Railway be liable for damages caused by such ejection from said train, including compensation for mental and physical suffering?
"Question 2. Could the International Great Northern Railway, under the circumstances stated, be held liable for anything further than the loss of the value of that portion of the ticket which was forfeited and rendered valueless by the stop-over at Austin?"
We answer that the facts stated show no right of recovery against appellant. The ticket constituted the contract between the two railroad companies and the passenger, and, by its terms, restricted the right of appellee to a continuous trip from San Antonio to Dallas, and notified him that no agent or employe had power to modify such contract. Negligence of the conductor in representing the contract to confer a right which on its face it plainly denied can not be held to be the negligence of appellant, since his act was unauthorized. Appellee could not properly *348
rely on such representation as being within the apparent scope of the conductor's authority, for the reason that the contract itself plainly showed that no such authority existed. It could be properly held, under the authorities, that such act or representation did not bind appellant even to carry appellee over its own road after he had broken his trip by stopping at Austin. Petrie v. Railway,
The authority relied on by appellee (Tarbell v. Railway, 24 Hun, 51, cited in 5 American and English Encyclopedia of Law, 602, note) does not conflict with the proposition stated. In that case, the plaintiff acted upon the assurance of a train agent, who had authority to grant stop-over tickets, that he could get off the train on which he was traveling and complete the journey upon another, using the same ticket. The agent acted within the scope of his authority and it was upon this the decision was based.
But if it could be assumed that appellant's conductor had authority to bind it to carry plaintiff upon another of its trains, this would furnish no ground for going further and holding that he therefore had authority to bind his principal to an undertaking that plaintiff should be carried over the other road contrary to the express contract of such road with plaintiff. The plaintiff was bound to know the meaning of his own contract and had no right, against its provisions, to act upon the assurance of the conductor.
