
    Nashville & Chattanooga Railroad Company v. William L. Sprayberry. 
    
    1. Practice. Might of Action. Memedy. When aright of action, unknown to the Common Law, is given by Statute and a remedy-prescribed, that remedy must be pursued.
    2. Lstjurv. Might of Action. Foreign Statute. An action for an injury, predicated upon the Statute of another State, may be brought in this; but the declaration must aver the Statute under which it is brought.
    See: Hobbs v. M. & G. Mailroad, Post, 873.
    
      3. Common Carrier. Passenger. “Through Ticket.” Inability. If one of several Companies, composing a public line of travel, by agreement with the others, receive fare and give a “ through ticket” over the entire, route, the Company selling the ticket shall be regarded as the agent of the other Companies, when the ticket itself imports this and no- • thing else appears.
    4. Ultra Vires. The Company selling the ticket may, by contract either expressed or to be fairly implied from its acts, bind itself to be responsible for the entire route; but this will not be held conclusively established from the sale of the ticket alone, or throw upon the defendant the onus of proving that' it expressly limited its liability. Secus, if a partnership in fact appear. ■ .
    Cases cited: Furstenheim v. Memphis & Ohio Railroad Go., ante, 238; Garter v. Peck, 4 Sneed, 203; Western & Atlantic JRailroad Go. v. McEl-wee, 6 Heis,, 208.
    PROM HAMILTON.
    Appeal in error from the judgment of the Circuit ‘Court, November Term, 1873. John B. Hoyl, J.
    S.A. Key, T. Richmond, For Appellant.
    E. M. Dodson, For Appellee.
   McFarland, J.,

delivered the opinion of the Court.

Sprayberry purchased from an agent of the Nashville & Chattanooga Railroad Company at Chattanooga, tickets for himself, wife, and two children, from that place to Shreveport, Louisiana. The tickets are what are known as coupon tickets, and indicated the route to be by the Nashville & Chattanooga road to Nashville, and by other connecting roads to Memphis, and from that point to Shreveport by steamboat. After passing over the Railroads to Memphis, the party took the Steamboat called the Nick Wall, to which they were directed, and while en route on the Mississippi river, an accident occurred, in which the wife of Sprayberry and his two children were drowned. Sprayberry brought this action against the Nashville & Chattanooga Railroad Co., and recovered a judgment for thirteen thousand eight hundred and sixty-five dollars, (|13,865.) The' drowning is averred to have been the result of the misconduct and want of skill on the part of the- officers and servants of the Boat. A demurrer was filed, on the ground that the plaintiff could not maintain the action, in his own. name, for the wrongs or injuries causing the death of the wife and children. This, we think, was properly overruled. An action of this character is unknown to. the Common Law, and is only given by Statute; — but,, where such an action is given and a remedy prescribed, that remedy must be pursued. As the injury occurred? in the State of Mississippi, the right of action and the remedy prescribed by the Statute of that State, is. the one to which the plaintiff is entitled. The Statute-of this State on the subject has no application. The action, though predicated upon the Mississippi Statute, may be brought in this State. In such case, the-declaration must aver the Statute under which it is. brought: this was sufficiently done: that Statute gives the remedy to the husband and father, and we enforce that- remedy in our Courts.

The next question, and one of importance, is as. to the liability of the Nashville & Chattanooga Rail-. road Company for injuries to the passengers, caused by the wrongful acts, negligence, or want of skill in the officers and servants of the steamboat, after the passengers had passed beyond their line. The declaration avers that the defendant was in partnership with the Company, or line of carriers owning the boat-.. This was put in issue. The Judge, in his charge, instructed the jury in substance, that it was necessary for the plaintiff to prove this, to entitle him to a recovery; but, if the plaintiff purchased the tickets, from an authorized agent of the defendant, the defendant, thereby, became bound for the transportation of the passengers over the entire line for which the tickets were sold, although beyond the terminus of its-own Road. And that the Company selling the tickets incurred the responsibility, as though the entire route were its own — unless it stipulated at the time for a less-responsibility. This we understand to be the substance of the instructions to the jury on this question. This doctrine rests upon the theory that the contract is alone with the Company from whom the tickets-were purchased for the entire route, and that the connecting lines are but agents of the first in carrying out this contract; and, as a consequence, the acts or negligence of the servants causing the injury, are the acts of the joint Company. This is laid down, as-the .true doctrine, in Shearman & Redfield on Negligence, Sec. 272. Though it is conceded, that the American cases do not always support it. The cases referred to in support of the position, we have not had an opportunity to examine. In the case of Carter & Hough v. Peck, 4 Sneed, the language of the Judge, delivering the opinion of the Court, seems to favor this view. In that case, however, it appeared that the plaintiff purchased from the defendants, the proprietors of a stage line, through tickets from Nashville to Memphis. The defendants did not own the entire, line, but had an arrangement with another Company owning a stage line, to receive the passengers at Waynesboro, on the route, and carry them to Lagrange for their share of the fare ; from which point they were to be taken to Memphis by Railway; but this arrangement was not known to the plaintiff. The connecting line at Waynesboro failed and refused to carry the plaintiff, and he was compelled to pay his fare upon another' route. It was held, that the plaintiff was entitled to hold the first Company liable for this failure, upon the ground that his contract was alone with them. The case of Furstenheim v. The Memphis & Ohio Railroad Co., decided at Jackson by this Court in April, 1872, was this: — the plaintiff purchased a through ticket from New York to Memphis from the Pennsylvania Central Railroad Co, and received a check for his baggage, to be delivered at Memphis. It was held, that upon this the plaintiff could not recover from the last Company running into Memphis, for any injury to his baggage which occurred while on the Pennsylvania Central Road — for this-injury he must look to that Company. We are also referred to several cases, and,, among them, one of our own, holding that a carrier receiving .freight to be carried beyond the terminus of its own Road, is responsible for its delivery at that point, unless a different liability is stipulated for; and these are stated as authorities holding that the same rule applies to passengers.

On the other hand, there are authorities holding that a different rule applies to passengers, from the rule applicable to freight and baggage. That where tickets of this character are sold, they are to be regarded as distinct tickets for each Road, sold by the first Company as agent of the others, so far as passengers are concerned.

This is the doctrine maintained by Judge Redfield, in his work on Carriers. He refers, among others, to the case of Ellsworth v. Nott, 26 Ala., in which he says the question was a good deal examined, and the rule laid down to be: “If the several proprietors of different portions of a public line of travel, by an agreement amongst themselves, appoint a common agent at each end of the route, to receive, the fare and give the through tickets, this does not, of itself, constitute them partners as to passengers, so as to render each one liable for losses occurring upon any portion of the line.” He refers, also, to other authorities. See Redfield on Carriers, Sec. 444. And the same author maintains the same doctrine in his work on the Law of Railroads, Vol. 2, Sec. 201. In this conflict of authority we are led to adopt the rule which to us seems supported by the soundest reasons.

The extent and termini of great Railway lines owned and operated by Companies incorporated by public laws, may be supposed to be known, at least in gem-eral, to persons of ordinary intelligence, when they purchase tickets to travel over them, especially when 'this is shown by the tickets themselves. The system of selling through tickets is one of great importance and convenience to travellers, as it avoids trouble, besides securing in some instances lower rates. The theory that the Company selling the ticket shall be held from this alone to have actually contracted to carry the passengers over Roads besides its own, and that the owners of the other Roads are but the agents of the first to carry out the contract, seems to us to be an arbitrary assumption, — a sort of legal fiction and contrary, in some cases at least, to the truth of the ease. Assuming that in fact the different lines of Road are separate and distinct, and owned and controlled by different Companies, with different agents and officers, and that there is no contract or privity between them in regard to carrying passengers, except the arrangement to sell through tickets, and that these facts appear in proof, Shall the fact, that the first Company, with the authority of the others, issues and sells the tickets, be held of itself to establish exactly what may be contrary to the truth; i. e. that the other Companies are but the agents and servants of the first?

There is nothing in this record to indicate that the officers and servants of the Steamboat, whose wrongful acts or negligence are said to have caused the death of the plaintiff’s wife and children, were- the servants of this defendant, or in any manner under its control, except the simple fact, that the defendant sold the tickets. - To allow this of itself to establish this arbitrary conclusion against the truth, would be to attach unjust responsibility' upon the Company selling the tickets. We are of opinion that in such cases the Company selling the ticket shall be regarded as. the agent of the other lines, when the tickets themselves import this and nothing else appears; and the purchaser may well understand with whom the contract is made and who is bound for its performance. Of course the Company selling the tickets may by contract, either expressed or to be fairly implied from its acts, bind itself to be responsible for the entire route; but, this should not be held conclusively established from the sale of the tickets alone, or to throw upon the defendant the onus of proving that it expressly limited its liability; and, if a partnership in fact appear, the case would be different. For this error the judgment must be reversed and a new trial awarded.  