On Motion for Rehearing.
We understand the petition to charge among other things liability of both defendants on the theory of a joint contract for the transportation of the material.
The theory of liability submitted by the court was whether or not the Gulf, Colorado & Santa Fé Railway Company contracted with Nelson (through Spencer) for a through shipment of this material over the lines of both defendants, and whether or not both com-*92pañíes through ' an authorized agent had notice at or before receiving the shipments of the special circumstances making prompt carriage necessary. It was competent for the court under the petition and the testimony to submit the case in this manner, and, if the evidence developed the fact to be that the contract made by the Gulf, Colorado & Santa Eé Railway Company for a through shipment was really the contract of both companies, notice of such circumstances to the Gulf, Colorado & Santa Eé Railway Company was notice to the Atchison, Topeka & Santa Eé Railway Company. The matter of notice t'o the latter company was established by notice to Hershey if the contract he made in his capacity as general freight agent of the Gulf, Colorado & Santa Eé Railway Company was binding as the contract of the Atchison, Topeka & Santa Eé Railway Company. Of course, any notice he received in the making of the contract was notice to the Gulf, Colorado & Santa Eé Railway Company; and, if the two companies were operating in the transaction of their business as one, notice to Hershey was notice t'o the Atchison, Topeka & Santa Eé Raiway Company. The contract and the information imparted at the time was one means of proving notice to both parties.
We think it advisable to make it more plain than we have done in the main opinion why we think there was testimony which warranted the jury in finding that there was a joint contract, by which each of the railway companies became liable for the defaults of the other. It would probably be going too far to hold that, when Hershey telegraphed to Kuntz, he explained the proposed contract and the circumstances connected therewith, and obtained a reply authorizing him to enter into the contract he made in behalf of the Atchison, Topeka & Santa Fé Railway Company. Such a finding would be based on conjecture. There is no doubt in our minds of the sufficiency of the testimony to show that Hershey made a contract with Spencer to secure the hauling of all of Nelson’s material, on behalf of both defendants, if Spencer’s testimony is to be given effect.
[24] The fact that he made such a contract would, of course, not be of itself sufficient evidence of his authority to make it on behalf of the Atchison, Topeka & Santa Fé Railway Company upon the familiar principle that agency cannot be established alone by the acts or declarations of the agent, though the same may be a circumstance, which, in connection with other circumstances, may be considered in proving agency. Railway v. Cunningham, 51 Tex. Civ. App. 368, 113 S. W. 775. We find other evidence in the record of the fact of agency. The Atchison, Topeka & Santa Eé Railway Company and the Gulf, Colorado & Santa Eé Railway Company are frequently referred to in the testimony as the Santa Eé lines, or Santa Fé System. The witness Hurley, general manager of the Atchison, Topeka & Santa Eé Railway Company, testified that the two .companies are operated separately with separate vice presidents and general man agers. The plain inference is that the two companies had the same president. Mention is made of the Atchison, Topeka & Santa Fé Railway Company being the “parent company,” and Spencer gave the direct testimony that they are under the same system as far as handling their business is concerned.
[25] Upon this testimony it could be properly found that the Gulf, Colorado & Santa Eé Railway Company was authorized to make contracts for through shipments of freight over its own and the line of the Atchison, Topeka & Santa Eé Railway Company and bind the latter as well as itself thereby. Ordinarily to make proof of the existence of such relations between connecting carriers as to make each the agent of the other, circumstantial evidence must be resorted to from necessity, but here we have direct testimony to the effect that these two companies were really one in respect to the handling of their business.
As broadly stated in Railway v. Wells, 24 Tex. Civ. App. 309, 58 S. W. 844: “The fact, legitimately inferred from the evidence, that the defendant was operated in connection with the Missouri, Kansas & Texas Railway and was part of the system rendered it liable for the acts of the system and every part thereof and the declarations and representations of agents of the Missouri, Kansas & Texas Railway Company would be the acts or declarations of the defendant.” And as stated in Buie v. Railway Co., 95 Tex. 66, 65 S. W. 31, 55 L. R. A. 861: “The authorities cited fully sustain the proposition that when one corporation makes use of another as its instrument through which to perform its business, the principal corporation is really represented by the agent of the sub-corporation and its liability is just the same as if the principal corporation had done the business in its own name.” The result is that the Gulf, Colorado & Santa Eé Railway Company had authority to bind the Atchi-son, Topeka & Santa Fé Railway Company by just such a contract as Spencer testified was made by it through its general freight officer, Hershey, without having to obtain the special consent of the latter thereto; that Hershey was capable of making the contract for it as well as for his own company, was agent for both in making it, and consequently what information or notice he had in reference to the subject-matter was information and notice to the Atchison, Topeka & Santa Fé Railway Company. Tim substance of the testimony of Spencer was that’ Hershey made the contract with him to put in effect, or proceed to put in force, the special rate of 34 cents to Selden, N. M., in consideration of these companies getting; *93all of Nelson’s freight. If such was the contract, Nelson was obligated to ship all his materials over their lines; he paying the regular rate until the low rate became authorized by the commission. There was delay in putting the rate on, due chiefly to the action of the commission. In the meantime it was necessary to have some of the material at Selden for this work, and what was so shipped was shipped over defendant’s lines, and, if Spencer was believed, under the contract he had made with Hershey. There was some conduct on the part of Spencer which was not wholly consistent with the fact that a contract had actually been made, as he testified to. But this,was a question of fact. If there had been no contract requiring all of the freight to be sent over defendant’s lines, or Spencer did not consider Nelson bound to do so, it is more than probable that the cars that were shipped before the rate went into effect would have been sent over another shorter and more expeditious route. The very fact that he used defendant’s longer route paying regular rates would indicate that he did, as he stated, ship these cars under the contract. The matter of Spencer’s testimony on this subject was one for the jury.
While the testimony on some material points in this case is not convincing, we think there was sufficient to authorize finding that Spencer and Hershey made the agreement as testified to by Spencer, which was a joint contract complete in itself concerning this transportation, binding on both defendants, and making each liable for the acts of the other in respect thereto; that both defendants had notice through Hershey of the circumstances making necessary the prompt delivery of the material at Selden, and of the danger of special and serious loss to Nelson in case of unreasonable delay.
With this explanation we conclude that appellants’ motion for rehearing should be overruled.