
    [S. F. No. 3828.
    In Bank.
    October 3, 1907.]
    CHRISTOPHER H. KIRK, Respondent, v. J. S. KIMBALL COMPANY, Appellant.
    Common Carrier—Damages for Failure to Transport to Destination—Action in Tort.—An action to recover a sum of money as damages alleged to have been sustained by the-plaintiff through the failure of the defendant, a common carrier of passengers, to transport Mm from San Francisco to the city of Dawson, Alaska, although based on a contract, is one of tort.
    Id.—Contract to Transport over Connecting Lines.—A common carrier may so issue tickets beyond its own lines and so control the transportation of its passengers as to be held to have contracted for the entire distance, and in consequence be answerable in damages for any breach of its obligations occurring on any one of the connecting lines. ,
    Id.—Default of Connecting Lines—Liability of Carrier fob.—Where there are several connecting lines and the plaintiff passenger seeks to recover for an injury resulting from the act of a connecting company, he must show a contract whereby the defendant carrier agrees to transport or warrants his transportation over the connecting lines, or show that it had such control over or controlling interest in the connecting company as to vest the defendant company with power to secure transportation over the connecting line and to make it its duty to see that such transportation is effectuated. The evidence in tMs, case reviewed and held not to show such a contract for carriage, or such an interest or control by the defendant as to render it liable for the default of a connecting line.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Frank J. Murasky, Judge.
    The facts are stated in the opinion of the court.
    Page, McCutchen & Knight, and C. E. Wilson, for Appellant.
    Sullivan & Sullivan, and Theodore J. Roche, for Respondent.
   HENSHAW, J.

This action was instituted by plaintiff to recover the sum of ten thousand dollars for damages alleged to have been sustained by him through the failure of the defendant, a common carrier of passengers, to transport Mm from San Francisco to the city of Dawson, Alaska. The case was tried before a jury, which rendered a verdict in favor of the plaintiff for the sum of six thousand dollars. Upon motion for a new trial the amount of the verdict was reduced by the court to two thousand seven hundred and thirty dollars, wMch reduction was accepted by the plaintiff and a new trial denied. Judgment was entered in favor of the plaintiff accordingly, and defendant appeals.

The facts necessary to an understanding of the legal propositions presented are the following: In 1898 there was a corporation organized for the purpose of carrying freight and passengers between San Francisco and St. Michael, Alaska, which corporation may, for convenience, be designated the “California Corporation.” There was likewise a corporation engaged in the business of a common carrier of freight and passengers on the Yukon River between St. Michael and Dawson City, which for convenience may be called the “Yukon Company.” An agreement was entered into between these two corporations by virtue of which the California company agreed to transport passengers and freight from San Francisco to St. Michael, from which place the Yukon company was to carry them to Dawson City. The California corporation, having no sea-going steamer of its own, chartered from the defendant J. S. Kimball Company the steamer “Dirigo,” by which the passengers were to be carried to St. Michael. The Yukon company was having built for it in San Francisco a river boat, called the “City of Dawson,” which boat was to be towed to St. Michael by the steamer “Dirigo.” After reaching this place it was to take on board the passengers and freight for Dawson City and proceed on the river journey. Tickets were sold by the California corporation on behalf of itself and the Yukon corporation for passage from San Francisco to Dawson City. These tickets contained two coupons, and provided that the passage from San Francisco to St. Michael should be made over the line of the California company, while the passage from St. Michael to Dawson City should be made over the line of the Yukon company. These tickets, which evidenced the contract between those companies and the purchasers, contained, amongst others, the following provisions: “In selling tickets, coupons or orders over other lines in connecting with this ticket and checking baggage thereon, this company acts as agent and shall not be responsible beyond its own line. ...

“Neither shall said vessel, her owners or charterers be under any obligation to forward passengers to their destination by any other conveyance or line nor refund the amount of passage. . . .
“No agent or employee has any power to modify or waive in any manner any of the conditions named in the contract.”

The California company experienced financial difficulties, was unable, in short, to pay the charter money for the “Dirigo,” and dropped out of business, the J. S. Kimball Company, owner of the “Dirigo,” assenting to a substitution of itself in place of the California company. By this arrangement the Kimball Company was to tow the “City of Dawson,” belonging to the Yukon company, for an agreed price, and was to receive, under their traffic agreement, forty-five per cent of freight and passage money for carrying them to St. Michael, while the Yukon company was to receive fifty-five per cent for its part, which was the river transportation. This agreement was in writing, and subsequently, according to the testimony of Zadig, manager of the Yukon company, was modified by parol agreement, according to which, he testifies, the two companies became “jointly” interested in the transportation of freight and passengers. The idea here sought to be conveyed, and which the respondent insists was conveyed with legal sufficiency, is that the Kimball Company thus entered into a partnership with the Yukon company, obtained0a control over the Yukon company’s means of transportation and conduct of business, and became directly responsible to the passengers, not merely for their transportation to St. Michael—the end of the Kimball Company’s run—but also for the river run to Dawson City as well. When analyzed, however, Zadig’s testimony does not show that the '“joint” interest of the two companies was any different from what it always had been, saying that the Kimball Company was to receive fifty per cent of the passenger and freight rate instead of forty-five per cent as before agreed upon. The tickets issued to the passengers, it is to be noted, were identieal with those first issued, with the substitution of the name of the Kimball Company for the California company, and the plaintiff testifies that at the time this second ticket was issued to him, Mr. Lauden (appellant’s manager) said “they would assume or were assuming the contracts just as we had made them with the transportation companies.” The Yukon company in turn became financially involved and was unable to proceed with its part of the contract. Its steamer, “City of Dawson,” was libeled and the company was without financial ability to release the attachment. Delays in prosecuting the voyage followed, much feeling was aroused among the passengers because of this delay, and, in the end, against the protest of Zadig, manager of the Yukon company, an arrangement was effected by the Kimball Company, or by the passengers of the “Dirigo,” or by both, with still another company, the Alaska-Yukon Company. The Alaska-Yukon Company had a river steamer, known as “James Eva.” This agreement, as testified to by Mr. Lauden, manager of the Kimball Company, was in effect a substitution of the Alaska-Yukon Company for the incapable Yukon company of Zadig. The Alaska-Yukon Company agreed to transport the “Dirigo” passengers and freight from St. Michael to Dawson City upon the first of their boats to arrive after the arrival of the “Dirigo.” It was expected that this transportation would be made by the “James Eva,” one of the river boats, which was then on its way from San Francisco to St. Michael. But in the not unlikely event that the “ James Eva ” was lost at sea (which actually occurred) or had departed from Dawson City before the arrival of the “Dirigo,” the Alaska-Yukon Company would receive the passengers and freight on another steamer called the “Rufus E. Wood,” and in the event that the “Rufus E. Wood” was not available, the Kimball Company was to deliver the freight and passengers upon the beach, when the Alaska-Yukon Company would become responsible for their further transportation. In brief, as has been said, the Alaska-Yukon Company took over the rights and duties of transportation from St. Michael which formerly had belonged to the Yukon company. The contract was, of course, entered into between the two transportation companies. There is no doubt as to the nature of that contract. It was as above set forth. There is no donbt also that it was entered into by the Kimball Company because of the clamorous desire of the passengers on the “Dirigo” to proceed with their journey, on the one hand, and the reluctance of the Kimball Company, on the other, to forfeit its share of the business of this transportation because of the failure of the Yukon company. Under "this arrangement the “Dirigo” proceeded on its voyage and arrived safely at St. Michael. There the Alaska-Yukon Company made default. The “James Eva” had been lost at sea. No other steamer was provided for the river voyage. The passengers made demand that the Kim-ball Company transport them or secure transportation for them. The Kimball Company refused to do this, but offered to repay the one half fare forfeited by the Alaska-Yukon Company. Plaintiff refused to accept this and was brought, back to San Francisco, where, in time, this action was commenced.

The complaint in this action, though based on a contract, sounded in tort (Jones v. S. S. “Cortes,” 17 Cal. 487, [79 Am. Dec. 142]; Warner v. S. S. “Uncle Sam,” 9 Cal. 697; Sloane v. Southern California Ry. Co., 11. Cal. 668, [44 Pac. 320]), and the demurrer to it, was therefore properly overruled.

As to the liability of a connecting carrier for transportation beyond its own line or route, the law is so well settled that-there can be no controversy over the matter, and indeed there-is none here. The court instructed the jury that a “common carrier may so issue tickets beyond its own lines and so control the transportation of its passengers as to be held to have contracted -for the entire distance, and in consequence be answerable. in damages for any breach of its obligations occurring on any one of the connecting lines. But where-there are several connecting lines and plaintiff seeks to recover for an injury resulting from the act of a connecting-company, plaintiff must establish a contract with the company he seeks to hold, or prove that it had some interest in or control over the transportation of passengers by the line-in default.” This instruction correctly enough enunciatés the law, saving in two particulars. It should have been more-explicit as to the nature of the contract which plaintiff must, establish. The contract which plaintiff must show is a contract whereby the defendant carrier agrees to transport or warants transportation over the connecting lines. Of course, it would not be sufficient for the plaintiff in such a case to show merely that he had a contract with the company that he sought to hold unless he further showed that the-contract which he established bound the company to the performance of the particular obligation which was violated. Again, it is not sufficient, in order to hold a company, to prove that it had “some interest in or control over the transportation of passengers by the line in default.” Some interest would be.evidenced by the fact that the defendant company was a creditor of the other or owned some of its stock, and “some control” over the transportation of passengers is exercised by every transportation company over connecting lines. Thus, one connecting transportation company cannot convey passengers unless they are delivered to it by the other line, and always to the extent of the delivery the one line controls the transportation of the passengers of the other. Of course, what was meant is such control over or controlling interest in the connecting company as to vest the defendant company with power to secure transportation over the connecting line and to make it its duty to see that such transportation is effectuated.

But this, however, is merely in passing, for respondent makes full concession that the law is as above stated, but insists that the evidence, though in conflict, establishes such an interest and control by the Kimball Company in the-Yukon company by the agreement heretofore commented on as made it its duty to see to and secure the transportation of the passengers from St. Michael to Dawson. Upon this turns the whole case, and we are of the opinion that to establish this proposition there is a signal failure of evidence. Indisputably the ticket issued by the Kimball Company to plaintiff and accepted by him established the contract between the parties. (Civ. Code, sec. 2176; Boglan v. Hot Springs R. R. Co., 132 U. S. 146, [10 Sup. Ct. 50].) At the time of the issuance of this ticket the Kimball Company had merely been substituted for the California company, and its duty to the plaintiff was limited by the termination of its voyage to St. Michael. As before pointed out, plaintiff himself testifies that the Kimball Company informed him that it was assuming the contracts just as they had been made with the California company. He testified further that when he received the ticket he knew exactly what arrangement had been made for his river transportation. Respondent not only admits but insists that the measure of the defendant’s liability is fixed by the terms of the last contract made by Zadig for the Yukon company with the Kimball Company. The whole weight of respondent’s argument is brought to bear upon the proposition that, under this oral agreement as testified to by Zadig, the Kimball Company became “jointly” interested with the Yukon company in the enterprise of carrying passengers and freight from San Francisco to Dawson, and therefore became liable to this plaintiff so to do. Great reliance is here placed on the testimony of Zadig, and italicized extracts are made therefrom. We will quote from Zadig’s testimony the statements upon which respondent relies: “The verbal agreement we had with J. S. Kimball was we were jointly going together; he was going to take us to St. Michael, the ‘Dawson City,’ I mean, and whatever passenger and freight money was received between Dawson and San Francisco, we were to divide jointly, and the returns from going up and coming down to San Francisco, both ways, were to be divided among ourselves, share and share alike. The ‘Dirigo’ was substituted under the arrangement that we should go in jointly. We entered into these arrangements after these original people, the Troy people (California company) had failed to perform their conditions contained in the charter party, and then when Mr. Kimball saw that we could not carry that out, 'he made a new proposition to us to go in jointly, he take half and we half. The agreement was made with Kimball, fully two weeks or a little more before the ‘Dirigo’ sailed. We made an entirely new deal, if you want to call it that way, with Kimball, and it was considered the joint account, that he takes half and we take half, which really was more advantage to him than to us, because it cost more from St. Michael to Dawson. He had the best of the bargain, if he would have had the boat gone up there, because the Dawson trip was the most expensive one. The facts are that we made a new arrangement. I must have found out that there was not enough money to go away, otherwise I needn’t to make any different arrangements. Why should I make an arrangement, which is poorer than—make an arrangement not as good—a new one not as good as the old one. There must have been some reason for it. A man never switches from a good thing to a bad thing unless there is some reason. The arrangement must have been made because we could not help ourselves. I understood that we were to divide equally the passage and freight money, after the payment of the towage and demurrage bill. We were to get fifty per cent instead of fifty-five.” When all of Zadig’s testimony is read it is made apparent beyond peradventure that the only difference between the written contract and the amended oral contract was that the Kimball people were to receive fifty per cent instead of forty-five, and the reason for this is fully explained as arising because of the delays which the Yukon people had occasioned in the sailing of the “Dirigo,” and because of the additional fact that they had not produced for that vessel the number of passengers and the amount of freight which they had promised. Such being the ease, it is manifést that there was no more of a “joint” enterprise in a legal sense under the division of fifty and fifty per cent than there was under the earlier agreement when the division was forty-five and fifty-five per cent. It is. as plainly apparent that throughout his testimony, where Zadig uses the word “jointly” he means “equally.”

It follows, therefore, that, treating the ticket as the measure of defendant’s obligation, it bound itself to nothing more than the transportation of plaintiff to St. Michael, which duty it fully performed, under conditions all known to the plaintiff at the time he accepted the ticket. If, however, reliance be placed by respondent upon the proposition that defendant, by contract with the Yukon company, obtained a control over its lines and thus imposed upon itself a duty to its passengers to see that they were transported to Dawson, then it must be said that the evidence totally fails to establish such an agreement and control. Without Zadig’s testimony the case of plaintiff in this respect fails utterly, and Zadig’s testimony, as has been shown, is entirely inadequate to support this contention.

This conclusion renders unnecessary any consideration of the other propositions advanced by appellant, and, for the reasons given, the judgment and order appealed from are reversed.

McFarland, J., Angellotti, J., Lorigan, J., Sloss, J., and Shaw, J., concurred;  