1 ARK.] SOtTHAVESTERN GREYHOUND LINES, INC. 903
v;,WISDOM. • * .SOUTIIWOTERN * GREYHOUND * LINES, INC. V. WISDOM. /. 4-4325; • • • : Opinion delivered Jime 29: .1 . 9 . 36 ° • ,CA4RIERS. A. ticket Agent of a bus company is, acting within the apparent scope of his authority in contracting : to, trarisport .the purchaser of, a ti'cket over a smooth hard surfaced road and on a speOfic schedule; arid although the bus Compari3i has im bus, ' 1 going to ' passenger's de g tinatinn : at that partieular time ''and ;“none at all going over a-smooth hard surfaced road, the comPany ,'liias,b . le . :for. breach of . the contract. . . 2. CARRIERS.—That: the company yeserved the right , to . change ; its schedule without notice to ,the purchaser of a . ticket does not re-' neve companSr froni liability for failure to transport passenger • tö' 'destiriefion, 'acdôrdirig to contraa, at a 'SPeci6d tiMe oii ri particular route; when ' such failure Was riot- : the result of ' • ,:,change, iri! ' schedple after the 'ticket , was sold.: .. • . .•, r ; . ; 3. / . .,.TUDGMITT WIT,Nl i I . SSES-4-1-1 . USBAND AND ,WIFE.—rWhere husband , and wife each recovered.judgrrient against bus 'company for Ure to transpdri wife accordirig to ; particular contract made ' at ' lithe ticket Was purchased; and the Judgirient . in ' faVOr Of the : 'husband 'is wholly' dependent : uPon" the' testimony Of the wife tri
904 SOUTHWESTERN GREYHOUND LINES, INC. [192 V. WISDOM. sustain it, it cannot, in view of § 4146, C. & M. Dig., rendering husband and wife incompetent to testify for or 'Against each other, be sustained; but the judgment in favor of the wife, although dependent upon the testimony of the husband as to the breach of the contract, will be permitted to stand, since the husband was, in making the contract, acting as 'agent for his wife. Appeal from Pulaski Circuit Court, Third Division; J. S. Utley„Tudge; affirmed and reversed. Buzbee, Harrison, Buzbee & Wright, for appellant. Tom W. Campbell, for appellees. • HUMPHREYS, J. This is an appeal from judgments in favor of appellee, 'Mrs. W. J. Wisdom, for $2,000, and in favor 6f appellee, W. J. WiSdom, for $412.20 for damages sustained by appellees on account of a . breach of a Contract by appellant to transport Mrs. W. J. Wisdom on a bus line from Memphis, Tennessee, to Little Rock, Arkansas, over a smooth or hard-surfaced road on a schedule leaving MeMphis at 7:45 p m., and arriving in Little Rock at 11:59 p. m. The alleged breach of the contract consisted in rerouting her at Memphis on her through ticket from Lawrenceburg, Tennessee, by way of Nashville and Memphis to Little Rock, which route was over a smooth or hard-surfaced highway and on . a schedule leaving Memphis at 7:45 p. m., and arriving at Little Rock at 11:59 p. m., around by Stuttgart and Pine Bluff over a rough gravel road and on a schedule leaving Memphis about midnight and arriving in . Little Rock at 8 o'clocl: the next morning. • Appellant contends the judgment should_be reversed because it did not make a contract to transport Mrs. W. J. Wisdom from Memphis to Little Rock over a smooth or bard-surfaced road on a schedule leaving Memphis at 7:45 p. m., to arrive in Little Rock at 11:59 p. m. The evidence is in sharp conflict in this particular, the agent who sold the ticket swearing he made no such contract, and W. J. Wisdom, who purchased the ticket, swearing that such a contract was entered into. Appellant argues that the written itinerary containing the schedule showing the time of departure of the bus from Memphis and the arrival thereof in Little Rock was no part of the contract. This itinerary containing said schedule was
ARK.] SOUTHWESTERN GREYHOUND LINES, INC. 905
v. WISDOM. . wrapped around the ticket when it was delivered by the agent . to the purchaser and proVided that Mrs. W. J. Wisdom might leave Memphis at 7:45 p. m., and arrive in Little Rock at 11 :59 p. m. W. J. Wisdom testified that he had informed the agent before buying the ticket that his wife was in Lawrenceburg, Tennessee, and he wanted a routing for her to come home to make it as convenient as possible; that she had been sick and was getting along all right and that he did not want anything to happen that would set. her back; that he wanted her to return on a paved highway so that she would not be jarred or joltect; that the agent said he could sell him a ticket and routing that would not inconvenience his wife; that all she had to do was to get on the bus. The evidence is ample to sustain the 'finding of the jury that appellant entered into a contract to transport , Mrs. W. J. Wisdom from Memphis on a hus operated On a smooth or hard-surfaced road on a Scheduleleaving Memphis at 7:45 p. m., and arriving in Little ROck at 11:59 p. m. Appellant argues, however,. that it was not liable for breach of the contract because it had no,bus leaving Memphis at 7:45 p. m. over .a smooth on . .hard-surfaced highway and no transportation agreement 'with other . bus lines operating such a bus. In other,words, that its agent -made a mistake in making-a contract it was not in a position to carry. out.. The agent was acting within the apparent scope of his authority, and his .mistake did not relieve appellant of liability for damages resulting on account' of the mistake of its agent. , Appellant also argues that it is exempt from liability because it reserved . the right in . the itinerary furnished appellees to change its schedule without notice to the purchaser or user of the ticket. There is no merit in this argument for, in the instant case, there had been no change in schedule from the time the contract was . made and the ticket 'was offered for passage. Appellant also argues that both judgments must.be reversed because the judgment in favor of . W. J. Wisdom, as to a breach of the contract, is wholly dependent upen the testimony of his wife and that 'the judgment in favor of her was dependent on' his, the husband's tes-
906 SOUTHWESTERN GREYHOUND LINES, INC. [192
•v. WISDOM. tiniony; as to •the contract entered into:: In support of this arguinent,. : they • cite •§ 4146 , of : Crawford & :Moses.' Digest, which is, in part, .as' followS : ' ';• 44 All persciiis ,:ecePt . fhose . enuinerated herein ' shall be comPetent ; to fe'stify in a civi1 acti'd.'' The folldWing persons incethp'etent: to testify . si * *.:: "Third.' HuSband"thid wife;' fOr Or . .agamSr each Other, 'or cOneerning an); cOmmitiniCation' Made . by -One tO the other dUriiig . the Marriage; Whether .ealled nesS'while that relation subsiStS di afterWard, !shall be 'AllOWed -Co t6§fifY for 'the otheriirreg y Aid td any 'business ' transaCted by the' One Tor the Other , in' the 'caPaCity of agent." 'It is tine that the brea'eh 'df 'the dontraet Wai'proved bY' the ; teetiMeny of 1VIrS!',W:'J ,WisdOm . and 'that the recoVerY or W j: WiSdoin wa'S and is I &Pendent whOlfy on her:testimUny. She was, in no sense:the agent ( 'of her 'hu§band, 'and , her teStiMon'in sUPport 'Of hi's jUdgnient Must be regarded a'S'inCoMPetent:' . WAhourt ::her` fe§ti-ni6i1Y; his itidkiiiefir is' ii6T' tiPP'orted by §Uffieient''sUbStantial testimonY, and MuSt 'be 'rever ged: ' While: she Nr . a§ niit hi§ 6kent; he . was her 'agent in' thA i te tlie '86n-traet for' her ' tra*pbrtation frOM Lkivrthic'ebuit,' Ten-nesee l , tc Littie*Oek;' arid that caPaeit'Y'Was not 'Pi l e-d:tided 'fiont 'te§tifyink ielative to'The' bontracf !in her behalf: Mrs.. W. , J. WiSaMta'Wriite 'her hu g band' g he Whs ready to coine home and . Wanted hira Idthiake'PrOViSiOn for her ` to' Coine: Instead:cif g ending ' the `ththiey to for her to ipy a ticket, he purchased' the ticket intLittle Rock from'appellant'S agent : fOr her, and was partioUlar to Procilre 'a routing and Schedttl'e which iVould make;,it convenient; sake, and ComfOrtable : for her•in• traveling. He waS aoting in her behalf' and , made' the' . contract for her benefit; and was her' agent within'the meaning , of said section of the statute: : His ieStithony 'as`to the 'contract . was admissible in: her behalf.•• The contract for, transportation having been .sustained, its breach. is .reflected :by, the undisputed , testimony. Wheir:Mrs. . Wisdom reached„Memphis enroute to Little Rock, she Was:told:by :the bus driver she:must
SOUTH . WESTERY •GREYHOUND- UNES, INC. 907 ! v. WISDOM. have' the ticket , agent ..0: . K. her : ticket. She-got ont : of • the !•:bus.)•and Went . - to • . the depdt 'for • this'. purpose: • She handed-the , agent. her ticket,. which he kept : and . issued her andther ione to : Little ItoCk by way of Brinkley, 'Stutt- • gart,.' and , Pine • Bluff, • and told' her she- could not' leave • until: .• midnight: • This .! rerontink.lwas! :, a, breach :of .the contract i ';. ;: • ';-' ;:i ' , " ; ; • -1;1-; .;,; ; • ...; The onl yem p. :; ) :J; • ;I) ai0 g ;,.;. .qiieSt ' ion;.rm.sed!by•appellant . is. tliAf lei jildginent is eceSsiNe. 'AI:ifiellant. *tends , that • she ; wi aS, onlY entitled in ; case .of ; : breach, , of the ;contract to, ;aino'nni 'necessaiy to purehase 4 tielet ;from. , Menaphis tO s Little , ItoCk; : : Tliis She conld not de ..hecause..she:W oillY 70 dentS :in MOney. , It is also i not :true . becau se her hnSband..nOtifì ed :APPellant 'S agent • : When :he ; boUght :the, ticket 'and inade the:Contract:that' site . .was .ifl, and,.if she trasYeled...Ori a rOngh 'road . and was subjected . to .undue jolting,: it Would bring . , abouf.a recurrenCe of her trouble or;illnessIn F case of breach,. this; entitled . her to any special -.Clan:Lag es Which the brea c l h 'Of ;the . :contract snh-. jected her to. She testified that she protested when the agent took up her ticket rerouting her by Brinkley, Stutt-gart, and Pine Bluff, .but that he . told her she would have to accept the new ticket and leave Memphis about midnight. She could not go to the hotel because she did not have the mean's' fo do so• and remained • in the depot until midnight. , She ,had, written .. her husband to . meet her . at . 11.:59 p.m.' and was very, much worried . on.account• of the delay and being • rerouted around, by , Brinkley, Stuttgart, and Pine Bluff • byeia rduih gravel . road. • It-was •a•roUgh ride ; fOi ; ' ; 'her, and . She':was 'up Allinight; being unable . to sleep, and did 'not ariive in Pine:Blnff . until daylight and in.. Little..itock,•uptil 8 o the • next, : morning . . She testified that she was a wreck when she reached Pine Bluff,' that 'the roUgh night ride caused . . her a return of her illheSS; frOin ; WhiCh she had ; toractically reCovered , be- • Tore -she Went 6* Visa née reiativeS in *TenneSSee With pennisSion Of ,Dr.. Shipp-on c condition f she . WoUld• travel in the bus . on sthooth lard-surfaced high:Ways: Her ness was due..tb heinorrhage . of the. Uterus. 'The return of this trouble, caused by the :rough: nigh-L.ride .frOnl • Memphis by way of Brinkley, Stuttgart,' and Pine••Bluff,
908 [192 had to be treated with radium in order to stop the flow of the blood and prevent hemorrhages. This necessary treatment caused her uterus to atrophy and caused her vaginal tract to contract until it was two-thirds less in depth than it was in the first place and to become very much narrower, but that in order to keep the vaginal tract from closing entirely, it is necessary at intervals to dilate or stretch it. Each time the dilation is done, it produces bleeding and very much pain. Her physician testified that the recurrence of the hemorrhage and displacement of the uterus again was due, in his opinion, to the vibration and loss of sleep in riding over the rough road by way of Brinkley, Stuttgart, and Pine Bluff. He also testified that the permanency of the condition would remain, and, perhaps, grow worse. We do not think $2,000 is excessive when the special damages she sustained is taken into consideration. The judgment in her favor is affirmed, and the judgment in favor of W. J. Wisdom is reversed, and his complaint is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.