Lancaster v. Mebane

^* Writ of error refused May 21, 1924. The appellants predicate error in refusing to give a requested peremptory instruction to the jury, upon the grounds, viz.: (1) That appellee's cause of action was barred by limitation because more than two years had elapsed from the accrual of the cause of action to the filing of the amended petition; (2) because the evidence failed to show that appellee was a party to the contract for transportation of her mother's corpse; (3) because the evidence fails to show that Jamie Mebane, in purchasing the corpse ticket, gave notice to appellants' agent that he was acting for appellee; (4) because no evidence was introduced at the trial showing that appellants were receivers of the Texas Pacific Railway.

The cause of action alleged in the amended petition is not, we think, essentially legally different from the cause of action alleged in the original petition, filed more than two years before the amended petition. Both petitions predicate the right of appellee to recover damages for mental anguish, suffered through an alleged wrongful act, upon the violation by appellants of the terms of an express agreement, evidenced by the ticket, by which the appellee was to travel in continuous passage on the same train on which the corpse of her mother was to be forwarded for burial from El Paso to De Kalb. The alleged wrong consisted of the act of separating her from the right to accompany the corpse on the same journey in continuous passage from El Paso to De Kalb, by removing the corpse from the train at Fort Worth. The original petition alleged that "at the same time" the "corpse ticket" was purchased the appellants' agent sold and the appellee purchased a ticket "over the same line to De Kalb, Texas," as the "corpse ticket" called for, and that "the corpse of the mother of this plaintiff was placed aboard a train of the defendant company known as the Sunshine Special train, to be shipped to De Kalb, Tex., and this plaintiff also boarded said train for passage to De Kalb." The reasonable implication from the facts alleged is that the appellants agreed and actually undertook to transport the appellee in continuous passage with the corpse, over the same route, on the Sunshine Special train via Texarkana "to De Kalb, Texas." The allegations that "the corpse was placed aboard the Sunshine Special train to be shipped to De Kalb, Texas," and that "this plaintiff also boarded said train for passage to De Kalb," imply a continuous travel to De Kalb by way of that train.

And the court can take judicial knowledge of the fact that the Sunshine Special train runs via Texarkana. The amended petition only makes more definite the routing, by affirmatively stating that the transportation was to be from "El Paso to De Kalb via Texarkana," and does not enlarge or essentially change the cause of action as originally pleaded.

Respecting the second and third grounds stated, above, it appears sufficiently, we think, from the evidence of Jamie Mebane, that the ticket agent at El Paso had actual notice that the transportation tickets were for the father, the son and each daughter. The transportation tickets were to be routed, as the agent was informed and knew, by the same special route by which the corpse was to be forwarded, in order for the appellee and the other members of the family to accompany the corpse through to destination at De Kalb. Jamie Mebane testified:

"I bought a ticket for my father, one for the corpse, and one each for each of my sisters, and I got a receipt for those tickets. Each ticket cost me $34.88, including the corpse ticket. Before purchasing these tickets I discussed with the agent as to what train we wanted to go on, and gave him the reasons why, and the Sunshine Special was selected on account of its getting in nearly a day earlier, and I wanted to get there at 9:45, I believe, and because the Sunshine Special runs direct from El Paso to Texarkana. * * * The agent routed me that way. * * * I did not know the agent, and I don't suppose that he knew me. I can't remember the exact language that was used by him and myself when I went there to get the tickets, except that I told him my mother was dead and that I wanted one corpse ticket and four other tickets for my father, and sisters and myself, and that I wanted it to go by way of Texarkana so that it would put me at home earlier than the other way. I explained why I wanted to go that way. * * * My father did not go with me to the ticket office, and neither did my sisters go. * * * At the time I purchased these tickets I told the agent at El Paso why I wanted to be directed by Texarkana. He suggested another route. He suggested Fort Worth, and I told him we wanted to go by Texarkana as it would put me at home nearly a day earlier. He routed us via Texarkana."

The appellee testified:

"We made arrangements with our brother Jamie to purchase the tickets from El Paso to De Kalb. We left El Paso on the Sunshine Special train, and my mother's remains were placed aboard that same train. I used one of the tickets that my brother purchased for this trip. * * * I did not go to the ticket office to purchase the ticket. I left that matter up to my brother and father, but we planned and arranged it ourselves, and then sent my brother to the ticket office for the entire family, and he got a ticket for all of us. My father advanced the money, and we were all one family. We had worked for part of it, and part of it was my money. Our home had been sold and the money was in the bank in my father's name, and it belonged to the family. I signed a check for some of that money."

In respect to the last point stated above, It appears from the ticket in evidence that it was issued by "the Texas Pacific Railway, J. L. Lancaster and Charles L Wallace, Receivers." And it further appears that appellants were sued as "coreceivers of the Texas and Pacific Railway." There was no pleading specially denying the capacity in which appellants were sued, nor is the fact of receivership specially denied. In the absence of a special plea denying appellants' capacity as receivers, further proof than above stated to sustain the allegations as to "appointment" was not required as essential to a judgment. Schaff v. Nash (Tex.Civ.App.) 193 S.W. 469.

The appellants predicate error upon submitting to the jury the question of damages only. It is concluded that the evidence presented the issue of fact only, as to damages, for the reasons stated in the companion case of Lancaster et al., Receivers, v. Jamie Mebane (Tex.Civ.App.) 260 S.W. 252, this day decided.

We have considered the other assignments of error, and conclude that they should be overruled.

The petition, reasonably construed, sues the appellants as receivers, and not the railway company, as such. And if a special exception lies as urged, to certain paragraphs of the petition it appears from the record that testimony was not offered in support of such pleadings, and therefore material injury does not appear in the ruling of the court.

The judgment is affirmed