Smith v. Western Union Tel. Co. , 84 Tex. 359 ( 1892 )

The court directed the jury upon the trial below to return a verdict for the defendant, upon the ground, as we are informed by the briefs of counsel, that plaintiff had failed to prove any contract for the transmission of his message with the Western Union Telegraph Company, against which he had brought his suit. In other words, the court held, that if the plaintiff had under the contract any right of action, that it was against the Central Texas Northwestern Railway Company alone, for the reason, as we presume, that the latter company had agreed, in the opinion of the court, to transmit the message to its destination, and therefore that the appellee was merely its agent employed for that purpose.

The plaintiff complains of the above charge of the court, and upon the trial below requested several special instructions, which were refused.

The analogy of connecting telegraph lines to connecting railways is so great, that it is believed that the established rules of law which determine the liability of the latter should be applied to the main question involved in this case, which relates to a connecting telegraph company. Scott Jarn. Law of Tel., sec. 278; Gray Com. by Tel., sec. 58, and note 1.

In the case of Railway v. Baird, 75 Tex. 256, it is said, that "in the absence of a partnership or authority to make a joint contract binding upon all carriers over whose lines freight is to pass, connecting lines are but the agencies employed by the contracting carrier to perform its own contract." But according to the great weight of the authorities in the United States, the mere "marking or booking" of freight to a point beyond the line of the receiving carrier does not amount to a contract of through transportation upon its part. The same may be said of the effect of a telegram addressed to a point upon the connecting line, although there should be no express limitation as to the liability of the first company. Porter on Bills of Lading, sec. 328; Gray Com. by Tel., secs. 58, 59; Laws. Cont. of Carr., secs. 238-240; Railway v. Pratt, 22 Wall., 123.

But however this may be as affecting the liability of the initial carrier, it has been held by the courts of nearly every State in this country, including those which follow what is known as the English doctrine as to a through bill of lading, that nevertheless the connecting company will be liable if in fact it is the carrier which inflicted the injury or committed the negligence of which the plaintiff complains. Laws. on Carr., sec. 741; Baldwin v. Tel. Co., 45 N.Y. 744. This appears to be the later English doctrine, apparently upon the ground of tort. Foulton v. Railway, L. R. 5, C. P. Div., 157; 43 L. T. (N. S.), 570.

In the case of Railway v. Baird, supra, it was also held, that the connecting carrier would be "liable for any injury to the property while in its possession," etc., but was not responsible for the negligence of the other carriers. This decision is in perfect accord with the great current of authorities in this country. Porter on Bills of Lading, sec. 343, note 2. Each carrier should be held liable for its own acts of negligence, and even for the acts of the others if there is a partnership between all or a joint contract binding upon each of them. Baird's case, supra. It has also been held by good authority, that where several railways constitute a continuous line each of them performs a public duty and an independent employment, and in accepting freight from another carrier for further transportation over its own line, contracts expressly or by legal implication, not with the other carrier but with the owner of the goods. Sherman v. Railway, 64 N.Y. 254. In any event, we think that the contract in this case which was made by the appellee, even if not made with the plaintiff, was clearly made on his behalf and for his benefit, and therefore he could elect to ratify and enforce it.

But again, whether we should regard the first company as the agent of the plaintiff or the agent of the defendant (the authorities conflicting on this point) in contracting with the appellee for the transmission of the telegram from Ennis to Dallas, it is evident that such contract is a binding agreement between the plaintiff and the defendant, for the breach of which by the latter the former may maintain his action for damages. The court, therefore, erred in directing the jury to find for the defendant.

The appellant further insists, that the court erred in refusing to instruct the jury at his request to the effect, that the defendant was bound by the written contract as its own act, because its execution had not been denied under oath by the defendant, and also because it had not denied under oath the existence of a partnership with the Chicago, Texas Northwestern Railway Company. Rev. Stats., art. 1265, secs. 6, 8; Railway v. Tisdale, 74 Tex. 8; 61 Tex. 508 [61 Tex. 508]. The answer to this position is, that the petition does not allege any partnership nor charge that the contract was executed by the defendant or under its authority. The Chicago, Texas Northwestern Railway Company does not appear to be even mentioned in the petition.

It may be further remarked in reference to the issue of a partnership, had it been raised, that it should have been submitted to the jury under appropriate instructions. Baird's case, supra; Laws. on Carr., sec. 242, and notes.

In view, however, of what we have said upon the other branch of the case, we deem it unnecessary to attempt to indicate what acts would be sufficient to authorize the presumption of a partnership between the connecting companies.

Because the court erred in charging the jury to find for the defendant, we think that the judgment should be reversed and the cause remanded.

Reversed and remanded.

Adopted April 19, 1892.