Ogles v. Nashville, Chattanooga & Saint Louis Railway Co.

Atkinson, J. This is a suit for damages. In her petition the plaintiff alleged, that the defendant was a railroad company with •an agent in Rome, Ga.; that defendant’s line of road, connected at Marietta with the road of the Louisville &.Nashville Railroad Company, which operated a line of railroad through Canton, Ga.; that “the two companies were connecting carriers and had traffic arrangements with each other by which each company was authorized to sell tickets and transportation over the entire line between Rome ■and Canton; that on August 7, 1906, petitioner’s husband was in Rome, Ga., where he had gone to live, and where she intended to .go and join him; that petitioner was boarding at the time in Canton, Ga., and had no money with which to pay her board or to pay ier railway fare from Canton to Rome; that she was unwell and •unable to work and take care of herself, and for that reason it was necessary that she go to her husband at the home of her father in Rome, Ga.; “that on said'date petitioner’s father went to the defendant in Rome and stated to this defendant there that he wished to . buy a ticket for his daughter, your p.e [431] titioner, from Canton, Ga., where she then was, to Eome, Ga.; that then and there the defendant agreed to sell and furnish such ticket for petitioner’s transportation from Canton to Marietta, Ga., by way of said line of Louisville & Nashville Eailroad Company, and from Marietta to Eome over said line of defendant; and said Martin [petitioner’s father] then and there paid to the defendant $2.42 in full payment for such ticket and transportation for petitioner and for her use and benefit, and the defendant accepted such payment and then and there agreed with said Martin and undertook, in consideration of such payment, to at once or within three hours transmit to Canton, through the agent of the said Louisville & Nashville Eailroad Company at that point, such ticket for petitioner, or to secure for her such transportation from Canton to Eome; that the defendant, when it accepted such payment and undertook to furnish said transportation, well knew where petitioner was, as well as for whose benefit said agreement was so made and' money was so paid, and to whom such transportation was to be so • furnished, and thereupon it owed the petitioner the duty to diligently do as it so agreed and undertook to do for her benefit, and to promptly and diligently transport her from Canton to Eome;” •that the defendant failed to transmit the ticket, and on account of .such failure, the plaintiff, while in a delicate condition, was obliged to remain in Canton, and on account thereof suffered injury, more at length described in the petition. The defendant demurred to the petition, among other grounds, upon that of the failure to set forth a cause of action. Upon the hearing the demurrer was sustained and the petition dismissed, and the plaintiff excepted, assigning error upon the judgment. Under the allegations of the petition (which must be construed most strongly against the pleader), Martin, the father of the plaintiff, entered into a contract with the agent of the defendant in Eome, by which the agent undertook to issue a. ticket for transportation, and to cause the same, through the railroad agent at ■Canton, to be delivered to the plaintiff, whose whereabouts in Canton the defendant’s agent at Eome knew. Thus far there were but ■two parties to this agreement, the plaintiff’s father and the defendant. It is not alleged that the plaintiff’s father was acting as the agent of the plaintiff in making this contract. If it had been intended to make such an allegation, such intention should have [432] been expressed, not left to inference. In this respect the case is; different from Seifert v. Western Union Tel. Co., 129 Ga. 181 (58 S. E. 699). It is alleged that there was a breach of this contract-by failure to issue the ticket and by failure to furnish the plaintiff' with transportation. The effect of such allegations was to allege a breach of the contract between the plaintiff’s father and the defendant. Clearly any right of action thereunder for injury arising from breach of this contract was in the plaintiff’s father, who* made it. Had the contract been so far executed by the defendant as to issue a ticket and deliver it to the plaintiff, the plaintiff, by virtue of holding the ticket, might have been introduced as a party, and for a breach of duty thereafter occurring, might recover,. under the ruling in Georgia, C. & N. Ry. Co. v. Brown, 120 Ga. 380 (47 S. E. 492), and Aiken v. Southern Ry. Co., 118 Ga. 118 (44 S. E. 828, 62 L. R. A. 666, 9 Am. St. R. 107). But, under the allegations, the breach occurred before the establishment of any relation between the plaintiff and the railroad company, and consequently the petition was open to demurrer. Judgment affirmed. All the Justices concur.