No. 2854. [fn*] | Tex. App. | Mar 7, 1924
"This cause will be submitted to you upon one fact alone, as follows: What amount of money will fairly and reasonably compensate the plaintiff as damages for the mental anguish suffered by him by reason of the negligent delay in the shipment of his mother's remains from El Paso to De Kalb? Answer in dollars and cents. [Here follows definition of mental anguish.]"
The appellants complain of submitting to the jury the question of damages only. They predicate error upon the ground that negligence vel non, as alleged in the petition, was, under the evidence offered, an issue of fact for determination by the jury, rather than a question of law to be decided by the court, as done. The petition substantially alleges: (1) That on April 25, 1921, appellee, his sisters, and father agreed and made arrangements to bury deceased at their home in De Kalb, Tex., at 10 o'clock a. m. of April 27, 1921; (2) that after having so arranged to bury the deceased the appellee, together with his father, purchased from the appellants' agent at El Paso a "corpse ticket" for the transportation of the dead body over appellants' line of railway to De Kalb, and at the same time the appellee purchased a ticket for himself over the same line to De Kalb; (3) that after purchasing said tickets, at 3:30 p. m. of April 25, 1921, the corpse of appellee's mother was placed aboard the Sunshine Special train of appellants to be forwarded to De Kalb, and that appellee also boarded that train for De Kalb; (4) that when the Sunshine Special train reached Texarkana at 11 p. m. of April 26 the corpse was not on that train; but (5) that the corpse was "removed from the train at Fort Worth, through the negligence of the defendants' agents and servants, and was left there in the baggage room from 3 p. m. of April 26 until 8 a. m. of April 27, when it was placed aboard one of the defendants' trains on the transcontinental division, which arrived in De Kalb on April 27 at 5 p. m."; and (6) that appellee did not know of the wrongful removal of the corpse from the Sunshine Special train until that train reached Texarkana, and even afterwards "for four or five hours was unable to ascertain the whereabouts of the body," "to his great mortification and distress of mind." In intention the petition sounds in contract of special routing of the appellee and the corpse over the line of railway from El Paso to De Kalb in continuous passage on the Sunshine Special train. For the effect of the averments is that of an undertaking on the appellants' part to transport the appellee in continuous travel with the corpse over the same line or special route from El Paso to De Kalb by which the corpse was to be forwarded. And the fact is averred that appellants in accordance with the agreement, accepted both the appellee and the corpse on the Sunshine Special train for continuous passage through from El Paso to De Kalb. Such averments are consistent, and not necessarily inconsistent with proof of an agreement of transportation from El Paso to De Kalb via Texarkana.
In keeping with these averments evidence was offered, without objection, showing that appellee, his sisters, and father agreed among themselves to bury the deceased in the cemetery at their home town in De Kalb, and to forward the corpse on the same train with them. They desired to take, and to have the corpse forwarded on, the particular Sunshine Special train of appellants out of El Paso via Texarkana, in order to reach De Kalb about seven hours earlier in the daytime than could be done on the train by way of Fort Worth and Whitesboro over the branch line. The evidence is undisputed that appellants' ticket agent at El Paso was expressly informed and knew that the appellee and the other members of the family wanted to take and to have the corpse forwarded with them on only that particular train over the particular route via Texarkana. The ticket agent, with this knowledge, then issued and delivered the tickets for transportation from El Paso to De Kalb via Texarkana route. The corpse was then placed on the Sunshine Special, and the appellee and the other members of the family also boarded the same train, bound, under the tickets, from El Paso directly through to Texarkana.
The legal effect attaching to these undisputed facts is that of a special undertaking or contract on the part of the appellants to transport appellee and the other members of the family, and at the same time to forward the corpse with them, on the same train to the particular destination of De Kalb in continuous passage over the particular route via Texarkana. They were accepted by appellants under the tickets on that particular train for that purpose. When the Sunshine Special train reached Fort Worth, en route through to Texarkana, the corpse was, as admittedly shown, removed by appellants' agents from the train and held in the *255 baggage room there until next day at 8 a. m., when it was sent forward by appellants' agents to De Kalb on the regular train over their transcontinental division line of railway. It is settled as a matter of authority that an unnecessary deviation or departure by a carrier from the route contracted makes such carrier absolutely liable for legal damages. 1 Elliott on Railroads, § 1440.
The fact that the tag on the casket did not read "via Texarkana" would not operate to relieve appellants of absolute liability for damages for removing the corpse from the train at Fort Worth. For the appellants had notice not only of the sale of the corpse ticket and appellee's ticket and of the routing, but that the corpse and the appellee had been accepted on that train under the tickets reading "via Texarkana." And the erroneous tagging or "checking" of the casket was done by fault of a baggage agent, authorized, as shown, to "represent the T. P. Railroad." Having undertaken, as appellants did, to transport appellee and the corpse together in continuous passage on the same train, via Texarkana, they did so with a knowledge of the fact that a failure on their part to comply with the terms of such contract of routing would result in injury to the feelings of the appellee, and they must therefore be held to have contracted with reference to damages of that character in the event of a breach of the contract on their part. Lancaster v. Mebane (Tex.Civ.App.)
The appellants insist that the alleged contract of transportation of the corpse is either a joint contract made with the appellee and his father, J. A. Mebane, or a contract made with J. A. Mebane alone, through appellee acting as his agent, and hence the appellee alone would be unauthorized to recover upon the joint contract without making J. A. Mebane a party to the suit, and also he would be precluded from recovering in the capacity of agent for his father, since the father has already recovered on the contract. As to whether a contract be single and entire, or apportionable in legal interests, like most other questions of construction, rests upon the intention of the parties and must be discovered in each case by considering the terms and subject-matter of the contract. In following this rule, it appears that appellants through their agents issued and delivered to the appellee and each member of the family a separate and distinct ticket for travel over the particular route from El Paso to De Kalb via Texarkana, for the especial purpose of enabling each one of them to accompany and journey in continuous passage with the corpse of the deceased, forwarded over the same route. The sale of each ticket to each one of the persons, with knowledge of the agent that each person was to accompany the corpse on the same train and route with it, intimately, yet separately, connects the sale of each ticket with the contract of forwarding the corpse For the sale of the "corpse ticket" for passage over a special route was not the only subject-matter of agreement, single and entire. There was also involved the contractual right of the appellee and each member of the family, arising out of the sale of each ticket separately, to proceed upon the same train in continuous passage with the corpse over the special route upon which the corpse was to be forwarded. Each member of the immediate family had his peculiar and exclusive interests, invaluable in the right, in accompanying the corpse in the forwarding to its repose in consecrated ground. And a separation of any one of the members of the family from the right to accompany the corpse on the journey, by removing the corpse from the train, would be a distinctive violation of his contract evidenced by his ticket. Therefore it is concluded that the issuance and delivery by appellants' agent of tickets to each member of the family over the same route as the corpse ticket operated, in the circumstances, to be a special agreement with each member of the family to have the corpse go by that special route in continuous passage on the same train with them. The damages of injured feelings are clearly separate and a subject-matter of apportionment in legal interests. The true legal distinction between rights of action which are single and entire, and those which are several and distinct, is that the former immediately arise out of one and the same contract, and the latter out of different acts or agreements, as here.
We have considered the other assignments of error, and think they should be overruled
*256The judgment is affirmed.