Citations
- 85 Tex. 158
Full opinion text
GARRETT, Presiding Judge,
Section B,—This action was brought by Isaac Looney against the Gulf, Colorado & Santa Fe Railway Company to recover damages, because, as alleged, the defendant’s conductor unlawfully ejected the plaintiff from defendant’s cars while he was travel-ling thereon as a passenger.
The petition alleged, that on August 6,1888, at Birmingham, Alabama, plaintiff purchased a limited ticket from the Louisville & Nashville Railway Company, which entitled plaintiff to transportation from said city of Birmingham, Alabama, to McGregor, Texas, and thence on the line of the defendant’s railway to Cameron, Texas; that in issuing said ticket the Louisville & Nashville Railway Company acted for itself and as the agent of the defendant company; that the ticket was purchased August 6, 1888, and was limited to August 9; that plaintiff left Birmingham on the day the ticket was issued, in ample and sufficient time to have reached his home in Cameron before the limit expired; but while travelling with all possible dispatch, and while on the cars of one of the connecting lines of defendant, at Belden, Texas, he was unavoidably detained, without fault on his part, about eighteen or twenty hours, and did not reach the said town of McGregor until the morning of August 10; that plaintiff, on August 10, entered the first passenger cars of defendant bound for Cameron after his arrival at McGregor; that the defendant company recognized the validity of said ticket, but refused to carry plaintiff thereon, claiming it had expired, and compelled plaintiff to pay the sum of $1 to be carried to Temple, on defendant’s line of road; that after passing Temple, defendant did, without any lawful'eause, with force and violence, eject plaintiff from its cars, and turn him off at a place other than a usual stopping place, in the open prairie and hot sun, and declined to transport plaintiff further. Whereby, to plaintiff’s great injury and mortification, he has been damaged, including lost time and additional price paid for ticket, in the sum of $2510, for which amount he prays judgment.
Defendant’s answer embraced general and special exceptions, general denial, and a special plea, that at the time plaintiff first reached defendant’s line of railway the time within which his limited excursion ticket was to be used had expired, of which fact plaintiff was notified by defendant’s conductor; that plaintiff, upon demand of the latter, paid his fare from McGregor to Temple, Texas, the last named point being the divisional terminus of defendant’s line of railway, where a change of conductors was made; that after leaving Temple on the route to Cameron, defendant’s second conductor demanded of plaintiff his fare or ticket from Temple to Cameron, and plaintiff refused to produce either; that plaintiff courted a forcible eviction of himself from defendant’s train, as a basis for a damage suit against defendant. Defendant says its conductor ejected plaintiff without force, solely because he utterly refused to pay his fare or produce a valid ticket.
Defendant’s demurrers were overruled by the court, to which defendant excepted.
Trial before a jury resulted in a verdict and judgment for the sum of 8434.
Appellant’s first and second assignments of error are based upon the action of the court in overruling its several demurrers, that the facts alleged in the petition showed that “when plaintiff was ejected it was in consequence of his insisting upon riding upon an expired ticket, and if plaintiff had any cause of action it was clearly not against defendant;” and in overruling defendant’s special exceptions, “ because the allegation as to delay or default being the express act of the carrier other than the-defendant, and the same not occurring upon defendant’s line, defendant •is not liable,”
From the allegations in the plaintiff’s petition it would seem that the agent of the Louisville & Nashville Railway Company at Birmingham, Alabama, sold the plaintiff a ticket, which entitled him to through passage from Birmingham to Cameron, Texas; and that in doing so he acted also as the agent of the defendant. It does not appear that the ticket' was composed of the separate tickets or coupons of each of the connecting lines, or that the ticket was limited in any other manner than as to-the time within which it should be used. Looking only to the petition, as we must in the disposition of the demurrers, the ticket appears to have been the joint contract of the Louisville & Nashville Railway Company and its connecting lines, including that of the defendant, to transport the plaintiff from Birmingham, Alabama, to Cameron, Texas, with a limitation only as to the time within which it should be done. Such a limitation may be made when reasonable, and the purchaser of the ticket must use it within the time stipulated; but it is subject to the implied condition that the train shall make the passage within the time limited, and that the company shall upon its part perform its obligation. 2 Wood’s Ry. Law, 1398, 1400, 1402.
It appears from the petition that the failure of the plaintiff to reach McGregor before the expiration of the ticket was owing to the fault of one of the connecting lines; that the plaintiff commenced his journey immediately after the purchase of the ticket on August 6, but was detained at Belden, on a connecting line, which failed and refused to move its train for eighteen or twenty hours; and that but for such delay plaintiff would have reached McGregor in time to take defendant’s train on the 9th of August, before the expiration of the ticket. Since it appears from the petition that the ticket was the joint undertaking, or evidence of such undertaking, on the part of all the lines of railway, the defendant would be responsible for the default of the connecting line causing the delay, to the extent at least that it was bound to honor the ticket when presented to it at McGregor for passage from McGregor to Cameron. A joint undertaking having been shown by the petition of all the connecting lines to transport the plaintiff from Birmingham, Alabama, to Cameron, Texas, the limitation of the time in the ticket also applied to the time within which the journey should be commenced at Birmingham; and the plaintiff having commenced his journey within the time prescribed, and continued the same, without a stop-over, to McGregor, he was entitled to be transported by defendant from McGregor to-Cameron, notwithstanding the limitation to his ticket had expired when he reached McGregor. 2 Wood’s Ry. Law, 1397, 1398; Lundy v. Railway, 66 Cal., 191. Since the averments of the plaintiff’s petition show a through contract for passage, as we think, there was no error in overruling the defendant’s demurrers.
But the facts as developed upon the trial of the case show that plaintiff’s ticket was a coupon ticket, the unused portion of which was as follows:
“ Issued by Louisville & Nashville Railway Company. Good for one passage of the class designated, to the point on Gulf, Colorado & Santa Fe Railway Company indicated by punch marks in check attached, when stamped by company agent, subject to the following contract. It is understood and agreed between the purchaser of this ticket and all the companies named in it and its coupons, as follows:
“ First. That in selling this ticket and coupons over connecting lines the Louisville & Nashville Railway Company acts only as agent, and is not responsible beyond its own line.
“ Second. That baggage liability is limited to wearing apparel, not exceeding $100 in value.
“Third. That no stop-over will be allowed unless permitted by the local regulations of the various lines.
' ‘ Fourth. That if this ticket and coupons are punched to indicate destination only, they are good until used.
“ Fifth. That if the ticket and coupons are sold at a reduced rate and punched to denote that they are limited, they are not good after the date so cancelled in the margin of this contract, and that if more than one date is cancelled they are void.
“ Sixth. That if no punch marks are used to indicate ' class,’ then this ticket and coupons are good for first class passage; but when punched to denote second class, they entitle the holder only to the privileges usually accorded to second class passengers.
“ Seventh. This ticket and coupons are void if they show any alteration or erasure, or if more than one station is designated as the terminal point; and that the coupons are void if detached.
“Eighth. That none of the companies named in this ticket or coupons will be held liable for damages on account of any statement not in accordance with this contract made by any employe or employes of said companies.
“ Ninth. That it is especially agreed and understood, that no agent or employe of any of the companies named in this ticket or coupons has any power to alter, modify, or waive in any manner any of the conditions named in this contract.
“ Tenth. That the right exists to declare this ticket or either of the coupons forfeited for violation of either of the companies (?) [conditions] named in this ticket or coupons; the right of forfeiture being a continuous one. " C. P. Atmore,
“General Passenger and Ticket Agent.”
In the margin of the contract “August 9, 1888,” is punched, indicating August 9, 1888, as the cancelled date referred to in the fifth clause of the ticket. Its only coupon attached reads, “Issued by Louisville & Nashville Railway Company on account of Gulf, Colorado